CUSTOMER RESOURCES
Ban The Box
What Businesses Need to Know About Ban the Box Laws
Everything You Need to Know About Ban the Box Regulations
Of all the trends impacting the background check industry and the employment hiring process, few have made a bigger or more successful splash than the ban the box movement.
Over the last decade, we’ve seen ban the box laws enacted across the nation, stretching from the local county level to state governments and even, to some degree, at the federal level. What is this policy all about, and what does it mean for your organization?
Learn about this movement to find out where ban the box legislation is in force, whether these laws apply to you, and how your organization can comply with these new regulatory demands.
What does ban the box mean?
Defining ban the box and its meaning is the first step to understanding the implications of this law. The “box” refers to a question on job applications that asks applicants if they have any criminal convictions in their past. Typically, candidates will need to check yes or no to answer this question, hence the “box.”
Applications with this question require job seekers to self-identify as criminal offenders from the start of the job application process. A ban the box law requires employers to remove this question as well as any other criminal history questions from applications.
These laws seek to reduce or prevent employment discrimination against individuals with criminal records. The idea is simple: by delaying the chance to learn about convictions, an employer can form a more unbiased initial impression of each applicant’s character, skill set, and overall job fitness. Criminal history questions can bias employers against applicants before they learn more about them, creating the potential for silent discrimination.
With no criminal history questions on the job application and delayed background checks until later in the hiring process, an ex-offender theoretically has a better chance of being seen as the best person for the job. At a minimum, it levels the playing field to put ex-offenders on the same level as the average job applicant.
Most ban the box legislation also places other restrictions and requirements on employers. For instance, some states prohibit employers from inquiring about arrests, dismissed charges, sealed records, or someone’s history in a pre-trial diversion program. Some of these laws restrict employers from inquiring about criminal history until after the first interview or after they make a conditional offer of employment. Some jurisdictions require employers to consider other factors, such as time-related restrictions or whether the criminal history is job-related.
Employers must take care to review the regulations that apply to the areas in which they operate and hire due to this patchwork of different rules.
History of ban the box
Though ban the box has become a buzzword phrase over the last few years, the trend originated more than two decades ago. In 1998, Hawaii became the first state in the country to eliminate the box for both public and private employers. This law made it illegal for employers to ask about a candidate’s criminal history in any way until after first making a conditional offer of employment.
In Hawaiian law, and in many laws passed in other states since then, a conditional job offer means employers still have the option to decline to hire a candidate if a background check reveals something seriously concerning.
Even in such situations, the Hawaiian law only permits employers to withdraw their offer based on a conviction if the criminal record has a rational relationship to the job and its responsibilities. The law only allows employers to consider criminal activity from the past ten years.
In the years since, as ban the box legislation became more common, other legislators looked to the Hawaiian law as a prototype. From the conditional offer requirement to the segmentation of public and private employers, Hawaii’s 1998 law established the trends, signposts, and overall language that inform how professionals and administrators still talk about banning the box today.
What are fair chance laws?
These legislative requirements are part of a broader “Fair Chance” employment movement.
Proponents of “Fair Chance” laws argue that current hiring practices continue to punish individuals long after they’ve completed their sentences. By denying jobs based solely on the existence of records, offenders have fewer opportunities to re-enter society successfully. Advocates for Fair Chance policies claim that expanding employment opportunities for ex-offenders may reduce recidivism and help to prevent crime.
Sometimes, Fair Chance laws include ban the box elements. Other times, they focus on different factors, such as encouraging employers to consider past criminal misdeeds on a case-by-case basis. Other times, these laws don’t concern criminal history information at all. For example, some localities have ordinances in place limiting employers’ ability to conduct credit history checks on their candidates.
Not all Fair Chance laws apply to hiring, either. As banning the box has grown more common, it has also developed momentum in housing. Some jurisdictions now limit landlords’ ability to disqualify housing candidates based on their prior criminal history. Banning the box also now has a foothold in higher education, with colleges and universities looking to be more fair to students with criminal backgrounds.
How does ban the box affect employee record checks?
So, do these laws ban background checks altogether?
Both employers and job seekers commonly want to know the answer to this question. As these campaigns gained serious momentum, professionals often mistakenly understood it as an effort to ban all criminal checks for hiring purposes. In reality, that’s almost never true.
When a legislature passes a law to ban the box, the background check process doesn’t disappear overnight—or at all. These laws typically don’t forbid employers from running checks on their applicants overall. However, box-banning legislation commonly requires a delay when you obtain a criminal check. Most often, this delay lasts until after the first job interview or until you make a conditional job offer.
Some of these laws also restrict how an employer can use the information they obtain. They may also require employers to give additional notices to applicants or delay the hiring process by granting candidates the right to appeal adverse decisions.
None of these limitations states that employers can't disqualify applicants based on past convictions. You can always withdraw a conditional offer of employment. Some ban the box laws (including the Hawaii prototype law) do limit withdrawals to situations in which your findings indicate that an applicant has a conviction history that would directly affect their ability to perform the job in question.
For instance, an employer could fairly disqualify a candidate with multiple DUI or DWI convictions from consideration for a truck driver position. Those convictions speak directly to that person’s safety and responsibility behind the wheel. On the other hand, those same convictions have a minor relationship to an office job behind a desk all day. Such convictions might not necessarily be sufficient for an employer to withdraw a conditional hiring offer under some laws.
Ban the box laws encourage employers to consider criminal histories on a case-by-case basis rather than rejecting all applicants who check a crime records box on a job application form. The intent is not to bar employers from considering conviction history when making employment decisions but rather to add important nuance to those considerations.
Who does this law apply to?
One of the most critical things to understand about banning the box is that there isn’t just one law. Rather, it is a broader trend made up of hundreds of different laws nationwide. This includes local ordinances, pieces of pending legislation, and on-the-ground advocacy campaigns. While it is always possible that there could someday be a nationwide law that applies to every business, that’s not currently the case. Today’s landscape is a patchwork of different regulations.
Unfortunately, the current structure of ban the box legislation makes it more challenging for employers to understand their obligations. Some laws exist at the state level; others are ordinances that only apply to specific cities or counties. Likewise, some laws apply only to public employers; others include companies that do contract work with government departments, while others extend to some or all private companies in an area.
Even when this legislation does apply to private businesses, it sometimes only requires compliance for employers with more than a certain number of employees, such as 15. Very small businesses remain free to make decisions when and how they prefer.
The evolving nature of the fair employment movement means that laws change frequently. New jurisdictions adopt their own box-banning legislation each year, while jurisdictions that already have laws or ordinances in place sometimes amend and update those laws to include new requirements.
Because of these factors, employers must be vigilant about staying updated on the latest laws in their local jurisdiction. All employers should check relevant laws and ordinances before writing a hiring policy or background check protocol to determine their compliance obligations.
Failure to comply with these laws can result in fines and other legal consequences, including civil lawsuits. Doing research before drawing up a job application or deciding when to run a check can help employers to avoid these costly lapses in compliance.
To help you, here are a few frequently asked questions about these laws, including the key details that employers should know about this legislative movement.
States with ban the box
At the time of this writing, 37 states (plus Washington, D.C.) and more than 150 cities and counties throughout the United States have passed some form of this legislation, according to the National Employment Law Project (NELP).
Here are the states that currently have this legislation on the books:
STATE | EMPLOYERS IMPACTED | WHEN CAN YOU ASK ABOUT CRIMINAL HISTORY? |
Arizona | Public employers that are part of the state government | The law requires affected employers to delay such inquiries until after the initial job interview. |
California | Amended in 2018, enforced in 2020. Applies to any private or public employers with five or more employees | No inquiries or criminal history questions until after making a conditional offer of employment. |
Colorado | Public employers that are part of the state government*, and all private companies of any size | Vetting candidates for criminal records is not permitted for public offices or agencies until after a candidate has advanced to the finalist stage of the hiring process. The law affecting jobs at private companies went into effect in September 2019 and only applied to private businesses with 11 or more employees. As of September 1, 2021, it now applies to all private employment entities. The law doesn’t include any details about when employers can run background checks; it simply prohibits employers from asking the question on the job application. |
Connecticut | All employers, private and public | Connecticut’s policy only bars questions to this effect on the job application. |
Delaware | All public employers | Employers cannot make any inquiries or conduct any criminal background checks until after conducting the first job interview. |
Georgia | Public employers that are part of the state government | Georgia’s law bars public employers from asking candidates about criminal record information on employment applications. |
Hawaii | All employers, private and public | Employers cannot ask these types of questions until after making a conditional employment offer. |
Illinois | Public employers that are part of the state government, and private companies with 15 or more employees | Employers must wait until after the initial job interview to conduct criminal background investigations, or after a conditional offer if there is no job interview. As of 2021, taking adverse action solely based on criminal convictions is illegal unless there is a clear relationship between the crime and the job. |
Indiana | Public employers operating within the Indiana executive branch | No criminal inquiries or background checks of any kind are permitted, except when a specific crime would legally disqualify a candidate from holding the position. |
Kansas | Public employers operating within or under the jurisdiction of the Kansas executive branch | No questions about past crimes or convictions on job applications, and no blanket policies that bar applicants with criminal backgrounds from progressing at least as far as the interview stage. |
Kentucky | Public employers operating within the Kentucky executive branch, and all private employers. | No inquiries into a candidate’s criminal record until after the candidate has received an offer to participate in an initial job interview. Private employers must make a conditional job offer and allow applicants to explain any convictions. |
Louisiana | All public employers if the job in question is not a classified position. Private employers are subject to weaker fair chance regulations. | No criminal record inquiries until after the first job interview, or until after a conditional job offer if there is no interview. Private employers may not request non-conviction arrest records and must conduct individual assessments of all applicants with conviction records. |
Maine | Public employers that are part of the state government. As of 2021, all private sector employers. | No questions pertaining to this subject on the job application. No statements on applications discouraging ex-offenders from applying. No questions prior to a job interview. |
Maryland | All public employers, and any private company with 15 or more employees | Employers are not allowed to ask candidates about their criminal pasts in any fashion until after the first job interview. |
Massachusetts | All employers, public and private | Employers cannot ask questions about their candidates’ criminal backgrounds on job applications. |
Michigan | All public employers | Inquiries pertaining to a candidate’s criminal past must be removed from state job applications. The law allows hiring managers to consider criminal background details during the interview process, but such information cannot be used to bar a candidate from the interview stage unless they are applying for a job where the state prohibits the hiring of a candidate with a criminal background. |
Minnesota | All employers, public and private | Employers cannot ask about past criminal activity in any capacity until after the first job interview, or until after a conditional job offer if there is no interview. |
Missouri | Public employers operating within the Missouri executive branch | No questions related to criminal past can be asked on employment applications. |
Nebraska | All public employers | Affected employers are only allowed to inquire about a candidate’s past criminal activity once they have determined whether the candidate meets the minimum qualifications or requirements for the job at hand. |
Nevada | All public employers | This law delays any inquiries about criminal matters until after a candidate has either gone through the final in-person interview or received a conditional job offer (whichever comes first). |
New Hampshire | All public employers that are part of the state government | New Hampshire state government offices cannot ask about arrest or conviction histories on job applications, forcing affected employers to delay those inquiries to the interview stage. There are exceptions in the law for law enforcement positions and several other job types. |
New Jersey | All employers with 15 or more employees, public and private | Criminal background inquiries in any form are illegal until after a candidate has completed the initial job interview. |
New Mexico | All employers, public and private | For public employers, New Mexico law bars the use of background checks or other criminal inquiries until after a candidate has been identified as a finalist for the position. For private entities, New Mexico law requires the removal of crime-related questions from job application materials. Employers must interview the candidate prior to inquiries. |
New York | All employers, public and private | Public employers are barred from inquiring about this type of background information until a conditional employment offer. Other employers can ask about some types of criminal history but cannot inquire about or consider youthful or juvenile offenses or any arrest or conviction records that the court has sealed. Employers cannot deny applicants only on the basis of a criminal history without a substantial relationship to the job role. |
North Carolina | All public employers | No criminal inquiries at all are permitted before the initial job interview. |
North Dakota | All public employers, with the exception of public school districts | Employers are not permitted to ask these types of questions before the first job interview. |
Ohio | All public employers | Affected employers must delay criminal background checks until after they have made a conditional employment offer. |
Oklahoma | Public employers that are a part of the state government | All questions pertaining to criminal matters must be removed from job applications. |
Oregon | All employers, public and private | Employers must delay inquiries about candidates’ criminal records until after the initial interview or conditional hiring offer (whichever comes first). |
Pennsylvania | Public employers hiring for “non-civil service positions” that fall under the jurisdiction of the governor’s office | No questions about conviction history are allowed on employment applications. Pennsylvania also has a separate law, applicable to all employers in the state, that requires employers to consider convictions and pending criminal charges only if they are relevant to the position. |
Rhode Island | All public employers that are part of the state government, and any private companies with more than four employees. | Employers are prohibited from inquiring about a candidate’s criminal background before the first interview. |
Tennessee | All public employers | No questions to this effect are permitted on the job application. |
Utah | All public employers | Employers must delay inquiries about a candidate’s criminal past until the job interview or until after a conditional employment offer is made if there is no job interview. |
Vermont | All employers, public and private | An employer cannot inquire about this information on a job application form. |
Virginia | All public employers | Public employers in Virginia must delay such inquiries until the first interview. Virginia’s marijuana decriminalization law from 2020 bisects with ban the box, prohibiting all employers in the state from requiring candidates to disclose past arrests, criminal charges, or convictions related to marijuana possession. |
Washington | All employers, public and private | Employers must delay these questions until after they have determined that a candidate meets all the basic requirements for the job. |
Wisconsin | All public employers | Public employers must remove questions about criminal information from their job applications and delay other similar inquiries until after they have determined that a candidate is qualified for the job in question. |
*Note that states listed as having a ban the box law for “public employers that are part of the state government” have laws that only apply to state agencies or offices. Local governments—including city, town, township, or county offices—are not required to follow these laws.
For states listed as having banning the box requirements for “all public employers,” the legislation applies to all levels of government statewide.
There are 13 states that do not have this legislation of any type except in some local municipalities:
Alabama
Alaska
Arkansas
Florida
Idaho
Iowa
Mississippi
Montana
South Carolina
South Dakota
Texas
West Virginia
Wyoming
Latest updates
New ban the box laws emerge regularly, both as state or county laws and as city ordinances. However, the pace of new laws has slowed considerably in recent years as focuses have shifted to drug screening and other fair chance efforts.
In some areas, ban the box laws apply only to public government positions; elsewhere, they apply to both private and public employers. You will want to perform research about your area to learn the specifics of your local ban-the-box laws and find out whether your state or local jurisdiction is considering such a law.
For your reference, backgroundchecks.com’s ban the box document charts state and local restrictions on criminal inquiries and checks for non-governmental employers.
As you can see, these laws are complex and vary from one jurisdiction to another. Employers can keep up to date with recent ban the box developments by following our blog, which often covers topics related to the Fair Chance employment movement.
Currently, the Equal Employment Opportunity Commission (EEOC) recommends that employers follow box-banning guidelines by eliminating questions about convictions from job applications and delaying checks–even when they are not required to do so by law.
In 2019, the Fair Chance to Compete for Jobs Act was signed into law, coming into force in 2020. This law bans the box for many kinds of employment with the federal government. It also applies to some contractors providing services to the government. Organizations that partner with the federal government and those who wish to compete for federal contracts should review the law to understand their obligations.
We expect these laws to continue to evolve and change in the coming years, and we will keep you updated about the latest developments and trends.
Ban the box pros and cons
Questions about the efficacy of banning the box often lead to a discussion about the trend’s pros and cons.
On the surface, this policy's primary advantage is the potential to remove barriers to employment for ex-criminal offenders. Such opportunities give these individuals more of a chance to land stable jobs and work toward more normal lives. Since poverty is a factor that leads to criminal activity, this core “pro” of banning the box is a significant one.
However, there are also some cons. We have already discussed the confusing nature of the patchwork legislation in the U.S., which can place an extra burden on employers and lead to accidental lapses in compliance. Some studies also show that employers will compensate for being forced to abolish the box by requiring their candidates to have higher levels of experience or education or by hiring more white applicants than minority candidates. These maneuvers effectively replace one barrier with another.
What does my company have to do?
There is no one-size-fits-all answer to this question.
These laws vary significantly from one state or local jurisdiction to the next. While your business is statistically likely to be in a part of the country where such a law exists (NELP says that three-quarters of the U.S. population now “lives in a jurisdiction that has banned to box”), that doesn’t mean that your company is obligated to do anything right now.
Of the 37 states that ban in the box, only 15 of them extend their requirements to private entities (California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington).
Twenty-two (22) areas–including Chicago, Baltimore, Los Angeles, New York City, San Francisco, Seattle, Philadelphia, St. Louis, and the District of Columbia–extend their protections to private jobs. Otherwise, most of these laws currently apply only to public employers.
You should take the time to research the legislative requirements in your state, county, and city or town. If a relevant law or ordinance is on the books, review the language of the law closely to determine whether it applies to your company. If you need help deciphering the law, our terminology page can help.
If the law does apply to your company, you will need to take steps to comply–whether that means removing questions about criminal backgrounds from your applications, delaying your criminal checks until later in hiring, or something else.
Your business can also opt to abolish the box of its own accord. Some organizations have taken this step to signal that they are welcoming individuals who have made mistakes in the past and are trying to rebuild their lives. Banning the box before you are legally required to do so can also put you ahead of the curve for compliance if your state or local jurisdiction does decide to end the box.
Does ban the box work?
There is debate about how effective this policy is in making employment more accessible for ex-offenders.
Champions say that it helps to reconfigure the mindset of employers and hiring managers in a powerful way, helping them to see beyond a person’s convictions to their skills and qualifications. According to a study conducted by the Urban Institute, these policies improve callback rates for people with criminal records, which means that they are effective for eliminating the tendency of hiring managers to immediately disqualify any candidate who self-identifies as having a criminal rap sheet.
That finding is significant, given the fact that–per the National Association for the Advancement of Colored People (NAACP)–a criminal background can reduce a person’s likelihood of a callback or employment offer by almost 50 percent.
However, critics of this legislation argue that it merely delays the moment in hiring when an employer would disqualify a candidate for a relevant criminal conviction, wasting both the candidate’s and hiring manager’s time. The Urban Institute study also found that banning the box has “reduced the likelihood that employers call back or hire young black and Latino men.” Additional legislation, further study, and efforts to raise awareness about the positives of banning the box could contribute, over time, to reducing these concerns.
Additional Resources
New Hampshire Mandates a Drug-Free Workplace Policy for Health Care Providers
The bill relates to a drug-free workplace for licensed health care facilities and providers that are licensed under New Hampshire Revised Statutes Annotated Chapter 151. This includes hospitals, home health care providers, residential care facilities, nursing homes, and other licensed facilities and providers.
It will apply to employees, contractors, and agents of the facility who provide direct or hands-on care to clients when acting within the scope of their employment or representation. Facilities and providers must designate an employee or interdisciplinary team of employees to be responsible for the policy.
The new law contains very specific requirements regarding the issues that must be addressed in a drug-free workplace policy. It must include the following:
Education of health care workers;
Procedures for monitoring storage, distribution, and procurement of inventory if controlled substances are stored, dispensed, or administered the setting;
Procedures for voluntary self-referral by addicted employees;
Procedures for co-worker reporting;
Procedures for drug testing including, at a minimum, testing where reasonable suspicion exists;
Procedures for employee assistance;
Provisions for confidentiality;
A process for the investigation, reporting, and resolution of drug misuse or diversion; and
Consequences for violation of the drug misuse and diversion prevention policy.
The law does not indicate potential penalties for failure to comply. However, it is likely that failure to adopt and implement a drug-free workplace policy will result in the suspension or revocation of a facility’s or provider’s license. RSA § 151:7 permits suspension or revocation by the New Hampshire Department of Health and Human Services where a facility engages in "conduct or practices detrimental to health and safety of patients."
House Bill 597 is available for review here: http://www.gencourt.state.nh.us/legislation/2014/HB0597.pdf
New Hampshire Eases Licensing Restrictions
The bill amends the New Hampshire statutes by inserting a new section, RSA § 332-G:10.
The new law eases the collateral consequences of prior convictions for those applying for a license. That is, it limits additional restrictions, over and above the direct consequences of a conviction such as incarceration, fines, and probation. Section 332-G:10 prohibits regulatory boards and commissions from denying a license to any person solely because of a prior conviction. It applies to licenses, certificates, and registrations granted for any occupation, trade, vocation, profession, or business. It also prohibits the suspension, renewal, or revocation of a license, certificate or registration based solely on a prior conviction.
However The licensing authority may consider information about the rehabilitation of the convicted person, and the amount of time that has passed since the conviction or release.
House Bill 1368 is available here: http://www.gencourt.state.nh.us/legislation/2014/HB1368.pdf.
Posting and Notice Requirements for New York’s Article 23-A
Article 23-A of New York’s Correction Law (§§750-755), relates to licensure and employment of persons previously convicted of one or more criminal .
The two exceptions to hiring or continued employment of an individual with history are:
Where there is a direct relationship between one or more of the previous criminal and the employment sought or held by the individual, or
The granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
Employers must consider the following factors when making decisions about employment or continued employment of individuals with history:
The public policy of the state, as expressed in the law, to encourage the licensure and employment of persons previously convicted of one or more criminal ;
The specific duties and responsibilities necessarily related to the employment sought or held by the person;
The bearing, if any, the criminal or for which the person was previously convicted will have on his or her fitness or ability to perform one or more such duties or responsibilities;
The time which has elapsed since the occurrence of the criminal or ;
The age of the person at the time of occurrence of the criminal or ;
The seriousness of the or ;
Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct, and
The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.
First employees must post a copy of the law in the workplace that is accessible to employees and in a visually conspicuous manner. (NY Labor Law Article 7 § 201) It is usually posted along with other required state and federal posters.
Second, employers are required to provide a copy of Article 23-A to any applicant subject to a background check. (NY General Business Law § 380) This is usually done at the beginning of the application process by attaching a copy of the Article to the job application form, or as part of the background check authorization and disclosure process. As a best practice, the applicant should be required to acknowledge in writing that he or she received a copy of Article 23-A.
Third, a copy of Article 23-A must be given to an applicant whenever a consumer report containing criminal conviction information is given to the employer. (NY General Business Law § 380) A complete copy of Article 23-A should be sent to the consumer along with a copy of the consumer report.
Article 23-A is enforced by the New York Division of Human Rights Division and the City Commission on Human Rights.
New York Correction Law Article 23-A: http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=@SLCOR0A23-A+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=50784808+&TARGET=VIEW
NY Labor Law Article 7 § 201-f: ://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$LAB201-F$$@TXLAB0201-F+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=06031469+&TARGET=VIEW
New York General Business Law § 380-d: ://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$GBS380-D$$@TXGBS0380-D+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=01628628+&TARGET=VIEW
New York General Business Law § 380-g: ://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$GBS380-G$$@TXGBS0380-G+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=01628628+&TARGET=VIEW
Oklahoma Restricts Employer Access to Social Media Accounts
“Personal online social media account” is defined to mean an online account that is used by an employee or prospective employee exclusively for personal communications that an individual establishes and used through an electronic application, service or platform used to generate or store content, including, but not limited to, videos, still photographs, blogs, video blogs, instant messages, audio recordings or email that is not available to the general public. This broad definition includes e-mail, instant messaging, and media-sharing accounts. As stated in the law, the account must be used “exclusively for personal communications” to be protected under the law.
Requiring the disclosure of a username and password or other means of authentication for accessing personal online social media accounts;
Requiring an employee or applicant to access a personal online social media account in the presence of the employer so that the employer can observe the contents of the account. An exception is provided for investigations;
Taking retaliatory or adverse employment action against an individual for refusing to give access information; or
Refusing to hire an applicant solely as a result of the applicant’s refusal to give access to personal online social media accounts.
Employees may be requested or required to disclose access information to any computer system, information technology network, or electronic communications device provided or subsidized by the employer. Also, employers may access accounts or services that it provides, that is provided by virtue of the employment relationship, or that is used for business purposes.
Individuals may bring a civil action against an employer for violations of the law, but must do so within six months after the alleged violation occurs. Damages are capped at $500 per violation. The law does not provide for punitive or emotional damages.
Oklahoma joins Louisiana, Tennessee, and Wisconsin as the fourth state to enact social media legislation in the past few months.
Access House Bill 2372 here: http://webserver1.lsb.state.ok.us/cf_pdf/2013-14%20ENR/hB/HB2372%20ENR.PDF
Employers Continue to be Sued in Class Action Lawsuits Alleging FCRA Violations
There appears to be a new favorite claim among plaintiffs’ attorneys these days. Three class action lawsuits were filed against employers in the past month in various federal district courts based on allegations of failure to comply with the Fair Credit Reporting Act’s disclosure requirements. The allegation in each case is that the employer failed to provide pre-adverse-action notices to consumers before taking adverse employment actions against them.
The FCRA requires employees to make several disclosures whenever a background check is conducted for employment purposes. The timing of the disclosures is also critical for compliance.
A disclosure that a background check will be conducted must be given to the applicant or employee prior to the check being conducted. This disclosure must be in writing and in a document that consists . It should be part of a printed employment application form, and it should not include a release of liability. The fundamental message of the disclosure is that “we will conduct a background check on you.” .
An authorization must be obtained from the applicant or employee before the background check is conducted. The fundamental message of the authorization is that “I authorize you to get a background check about me.” While the FCRA allows the disclosure and authorization to be in the same document, .
If the background report shows any information that may disqualify the subject of the report from employment, This is true even if the adverse information is considered an automatic bar to employment. This notice must contain a copy of the report, and a written description of the consumers’ rights under the FCRA. Generally, the notice provides consumers with contact information for the consumer reporting agency, and notice of the consumer’s right to dispute the accuracy of the report.
The Federal Trade Commission has previously said that five business days is a reasonable period of time for the subject to dispute a report. That’s why no adverse employment action should be taken for at least five business days after a pre-adverse-action notice is mailed. If an applicant successfully disputes an erroneous report, the employer must continue through the hiring process as normal. Many recent cases feature lower-level managers thinking that the mere fact that potentially adverse information triggered the pre-adverse-action notice meant that the employer had decided not to hire an applicant.
If the subject does not dispute the report and the employer decides to take an adverse employment action against the subject after the five-business-day waiting period, This notice includes the contact information for the consumer reporting agency that prepared the report, and informs the subject about certain rights under the FCRA.
The potential damages resulting from these class action lawsuits are substantial. Statutory damages of not less $100 and not more than $1,000 for each and every violation may be assessed. Additionally, employers may have to pay punitive damages, attorney fees, witness expenses, court costs, and pre-judgment and post-judgment interest.
Due to the current climate for class action lawsuits involving alleged technical FCRA violations, employers should immediately review their disclosure forms, authorizations, and policies to ensure compliance.
Case Summaries:
In April 2014, a large insurance company was sued in a putative class action for allegedly failing to provide plaintiffs with a copy of the consumer report and a statement of rights under the FCRA before taking adverse action. (Case No. 5:14-cv-00151; E.D. Ky., April 18, 2014).
In April 2014, another retailer was sued in a putative class action for allegedly taking adverse action against plaintiffs without providing pre-adverse action notices. (Case No. 8:14-cv-00612; C.D. Cal., April 18, 2014).
In March 2014, a large retailer was sued in a putative class action for allegedly failing to provide plaintiffs with a pre-adverse-action notice before taking adverse action. (Case No. 3:14-cv-00208; E.D. Va., March 24, 2014).
On February 7, 2014, a large grocery store was sued in a putative class action for allegedly using a consent form that was not legally valid. (Case No. 3:14-cv-00592; N.D. Cal., Feb. 7, 2014).
November 2013, a motion picture company was sued in a putative class action for allegedly failing to provide pre-adverse-action and adverse-action notices, and for failing to provide applicants with a copy of their consumer reports. (Case No BC 526351; Superior Court of California, November 2013).
July 23, 2013, a large trucking company was sued for allegedly failing to provide pre-adverse-action notices. The company has agreed to settle the case for $4.4 million. (Case No. 3:13-cv-00473; E.D. Va., July 2013).
In October 2011, a large retailer was sued in a punitive class action for allegedly failing to provide a clear and conspicuous written disclosure consisting solely of the disclosure that a consumer report may be obtained for employment purposes. Plaintiffs also alleged that the defendant failed to obtain a valid authorization in writing to obtain a consumer report and that it failed to provide plaintiffs with an accurate and current summary of rights before taking adverse action. (Case No. 3:11-cv-00697; E.D. Va., October 17, 2011).
Additionally, backgroundchecks.com has previously reported on similar cases:
On November 2, 2012, we reported on a class action case against a chain of auto-parts stores. The assertion, in this case, was that the disclosure was not a stand-alone document, but that it was part of the application form, and it included an acknowledgement and a release of liability. It also alleged the employer failed to timely provide applicants with copies of the ore-adverse-action notice.
On December 16, 2011, we issued a compliance update about a pizza chain and a major bank being sued in class actions. The allegation in the pizza case was that the disclosure was invalid because it included a release of liability. The allegation in the bank case was that the bank included its FCRA disclosure in a document covering all of the terms and conditions of employment, and included a release of liability, instead of having the disclosure in a separate document.
On June 6, 2011, we reported on a transportation services company that settled a class action suit for $5.9 million. The employer allegedly failed to properly disclose that it would seek a consumer report, and obtain employee authorization before obtaining consumer reports, and for using the consumer report adversely without giving proper notice before and on taking adverse action.
On May 24, 2011, we reported on a class action suit brought against an employer for alleged technical failures to comply with the FCRA. In this case, the employer included the disclosure that it would run a background check on its employment application form. It also waited only four business days between sending a pre-adverse-action notice and sending the adverse-action notice.
Tennessee Restricts Reporting of Expunged Records
On April 10, 2014, the Tennessee legislature passed House Bill 2048 and prohibiting the reporting of expunged criminal history.
House Bill 2048 amends Tennessee Code Annotated, § 40-32-101 which regulates the destruction and release of documents upon dismissal or acquittal of the charge. The bill adds a new subsection as follows:
Any private entity that performs criminal background checks shall not report that a person has been convicted of an if the has been expunged pursuant to this section.
backgroundchecks.com has reported on other states this year that have passed legislation about expunged records. Employers and educational institutions in North Carolina are prohibited as of December 1, 2013, from requiring an applicant for employment or admission to disclose information about an arrest, criminal charge, or criminal conviction that has been expunged. In Washington state, applicants and employees in assisted living facilities or boarding homes, hospitals, and home care agencies, and other long-term care facilities may be considered for employment if they have one or more convictions for a past offense and the otherwise disqualifying conviction or disposition has been the subject of a pardon, annulment, or other equivalent procedure.
Other states, including Florida, Louisiana, and Minnesota have similar bills pending. We will continue to report whenever a state restricts access to or the reporting of criminal records.
Tennessee House Bill 2048 is available for review here: http://www.capitol.tn.gov/Bills/108/Bill/HB2048.pdf.
Our Compliance Update dated February 3, 2014, about North Carolina: http://www.backgroundbiz.com/compliance/complianceupdate_02032014.html.
Our Compliance Update dated February 3, 2014, about Washington: http://www.backgroundbiz.com/compliance/complianceupdate_04142014.html.
New Criminal Background Check Requirements for Home Care and Assisted Living in Virginia
The state of Virginia recently passed House Bill 450 relating to the employment of individuals with criminal convictions.
The changes made to the law specify that a facility must first obtain a criminal clearance or a criminal history record before placing a person in a position of direct contact with a patient or child, unless the person works under direct supervision of another employee that has been cleared. Criminal clearances and criminal history records are obtained through the State Police who administers the Central Criminal Records Exchange (CCRE). The CCRE is the sole repository for criminal records in the Commonwealth of Virginia.
The amendments to the sections relating to nursing homes and home care organizations are the same. The language added to the law is as follows:
The new language relating to assisted living facilities reads as follows:
Virginia House Bill 450 is available for review here: http://lis.virginia.gov/cgi-bin/legp604.exe?141+ful+CHAP0129+pdf.
Indiana Makes Technical Correction Affecting Criminal History Providers
In early August 2013, backgroundchecks.com reported on the passage of Indiana House Bill 1392 which, among other things, amended laws about criminal history providers. The bill was drafted after a study committee reviewed and amended a law that had passed in 2012 (House Bill 1033), with an effective date of July 2013. A purpose of House Bill 1392 was to adjust the law to permit criminal history providers the ability to provide certain information relating to an incident that did not result in a conviction (for example, pending arrest cases). But, after House Bill 1392 passed, House Bill 1006 (2013) amended the same sections of the Indiana Code. Its authors apparently had not noted the passage of House Bill 1392, so accidentally re-instated parts of the law as it was in effect after House Bill 1033 and before House Bill 1392.
Because there were two conflicting versions of the law, House Bill 1006 (2014) – confusingly the same bill number as in 2013 - was introduced in the 2014 legislative session. Section 35 (pgs. 44 & 45) of the bill provides a technical correction reflecting the intent of the study committee It was passed by the legislature on March 18, 2014, and Governor Mike Pence signed it on March 26, 2014.
House Bill 1006 (2014) goes into effect July 1, 2014. It is available here: http://iga.in.gov/static-documents/7/9/9/c/799c6d19/HB1006.07.ENRH.pdf
backgroundchecks.com’s compliance update dated August 17, 2012: http://www.backgroundbiz.com/compliance/complianceupdate_08172012.html
backgroundchecks.com’s compliance update dated August 2, 2013: http://www.backgroundbiz.com/compliance/complianceupdate_08022013.html
Employers, Background Checks, and Government Rules
In 2014, two federal agencies worked together to issue a critical guidance document for employers who use background checks. Even now, many years later, this publication is still an essential resource for employers when designing a pre-employment screening program. The document, titled “Background Checks: What Employers Need to Know,” is the joint effort of the U.S. Federal Trade Commission (FTC) and the U.S. Equal Employment Opportunity Commission (EEOC).
Let’s review the key points outlined by the FTC and EEOC in this document, along with critical requirements of the Fair Credit Reporting Act (FCRA) – the federal law that regulates background checks – and other vital considerations that employers should keep in mind when developing a policy for conducting background checks on their applicants.
Before ordering a background check for employment purposes, you should prepare to engage in an equitable process that aligns with the requirements of the FCRA and any other applicable laws. The EEOC reminds employers to treat everyone equally. If you conduct background screening on applicants and employees, everyone should receive the same treatment. The process should be consistent for all who engage with it.
As an employer, remember that the FCRA requires you to follow specific procedures before ordering a background check for employment. These requirements include the following:
You must inform the individual that you may obtain and use their background report for an employment-related decision. This is often referred to as the disclosure. The FCRA specifies the requirements for this disclosure, including that it be clear and conspicuous and in a standalone document.
If you order an investigative consumer report – a background report that includes information obtained through personal interviews – there are additional disclosure requirements with which you must comply.
You must obtain the individual’s written consent to a background check.
You must certify to your background check provider that you received their written permission, have complied (and will comply) with FCRA requirements, you won’t discriminate against the individual or misuse the information in violation of federal or state equal employment opportunity laws.
Using Background Information
Once you obtain background information, what’s next? What should you consider when reviewing someone’s background information? The EEOC states that you should:
Apply the same standards to everyone.
Be mindful that some potential background issues may be more common among members of protected classes.
If your screening program includes a criminal background check, the EEOC also provides resources with best practices and guidance to help employers understand ways in which they may consider arrest and conviction history in employment decisions while avoiding violations of Title VII of the Civil Rights Act of 1964.
Adverse Action Using a Background Check for Employment
Under the FCRA, employers have responsibilities when considering adverse action based on information in a background report. As an employer, before taking adverse action, you must:
Provide the individual with a notice that you intend to take adverse action.
Include a copy of the background report you used to make your decision.
Give the individual a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”
Provide the applicant a reasonable time to review their report and respond or file a dispute should they wish to do so. Five business days is considered best practice in many cases. However, some jurisdictions have passed ban the box and fair chance hiring laws that extend this period.
When taking final adverse action, employers must inform the individual and provide:
The name, address, and phone number of the consumer reporting agency that provided the report. A statement that the consumer reporting agency did not make the decision and cannot provide specific reasons for the adverse action.
Notification that the individual has a right to dispute the accuracy or completeness of the report.
Notification that the individual may receive an additional free report from the screening provider within 60 days.
It is important to note that many jurisdictions have passed ban the box and fair chance hiring laws which require compliance with additional requirements and restrictions when using background check information in employment decisions.
Disposing of Background Information
The FTC Disposal Rule requires the proper disposal of consumer reports and information from those reports to prevent unauthorized access to or misappropriation of the information. Properly disposing of physical documents may include burning, pulverizing, or shredding information to ensure it cannot be reconstructed. Electronic information must undergo secure erasure. The FTC has provided guidance on the Disposal Rule, which includes more details of the Rule and what may constitute proper destruction of consumer report information.
Navigating Compliance With State and Local Laws
In the years since the original guidelines were published, the regulation landscape for employers who conduct background checks has changed. Many cities, counties, and states have enacted laws that could impact employers’ background screening programs. These laws include ban the box, fair chance hiring, pay equity, and other laws. If you conduct screening in an area with one of these laws, you generally must comply with these laws in addition to the FCRA and other applicable laws and regulations. For more information about ban the box and fair chance hiring laws, visit our Resource Center.
Other Helpful Resources
The EEOC and other government agencies still periodically publish guidance for employers about background checks. The EEOC and FTC’s joint publication “What Employers Need to Know” is an excellent example of this guidance. The information outlined in this and other EEOC and FTC guidance can help employers understand critical points about using background checks in employment decisions.
The EEOC also provides other resources, such as those related to the use of arrest and conviction history in employment decisions. The EEOC groups many of its background check-related resources in one central location.
The FTC has also published other helpful resources for employers, including a blog post titled “Background checks on prospective employees: Keep required disclosures simple,” “Disposing of Consumer Report Information? Rule Tells How” article, and a resource entitled “Using Consumer Reports: What Employers Need to Know.”
Some state and local jurisdictions will also publish FAQs or guidance on complying with their jurisdiction’s laws, such as ban the box and fair chance hiring laws. When screening in a jurisdiction with these laws, consider searching the appropriate local agencies’ websites for additional information and guidance.
Lastly, employers are encouraged to review their screening programs and processes with legal counsel to help ensure their compliance with the laws and regulations applicable to their organization.
Expunged Records Are Off Limits to Employers in North Carolina
The North Carolina legislators passed Senate Bill 93 last year for the purpose of clearing the public record of any entry of any arrest, criminal charge, or criminal conviction that has been expunged. The bill also clarifies that an administrative licensing board may reissue a license if an administrative action is vacated due to an expunged record.
The law also prohibits them from inquiring about an expunged arrest, charge, or conviction in an application, interview, or otherwise. It also prohibits an inquiry about an arrest, charge or conviction that they know has been expunged. The law further protects individuals with expunged records by permitting them to omit reference to the expunged charges or convictions to potential employers and others.
The law does not prohibit an employer from asking a job applicant about criminal charges or convictions that have not been expunged and are part of the public record.
Violations of the law will result in a written warning for the first event. Each additional violation will be subject to a civil penalty of up to $500. The state’s Commission of Labor will consider the size of the business, the gravity of the violation, the good faith of the person, and the record of previous violations when accessing penalties. There is an appeal process is available to employers.
Senate Bill 91 also amended the General Statutes section 15A-145.4 that deals with expungement of juvenile first offender non-violent crimes, and section 15A-145.5 that deals with expungement of non-violent and felonies. Each section now requires state agencies to vacate any administrative actions taken on the basis of an expunged record and allows the individual to reapply for any occupational licenses previously denied.
Other provisions of the law deal with state or local governments making inquiries into expunged criminal records of applicants.
This new law in North Carolina is similar to other state laws being passed or proposed that prohibit employers from obtaining or using information about an applicant or employee’s criminal convictions that have been expunged.
You may view Senate Bill 91 here: http://www.ncga.state.nc.us/Sessions/2013/Bills/Senate/PDF/S91v6.pdf
