Staying on Top of Changes in "Ban the Box" Laws

When was the last time you reviewed the procedures that your business maintains for criminal background checks?

Just a few decades ago, the landscape of employment law was much simpler as it applied to vetting job applicants for unsuitable criminal histories. Businesses primarily had the Fair Credit Reporting Act and its notification requirements to contend with when using background checks on prospective employees. Today, a wide range of ban the box laws and frequent legislative changes to criminal law mean that standard FCRA riders attached to your applications are not enough.

Some employers believe that the existence of a local ban the box law only requires them to avoid asking about criminal histories on the job application. In fact, many major municipalities from Oregon to Maryland have created additional requirements for employers. These changes range from restrictions on when in the interview process criminal history becomes relevant to how businesses must serve pre-adverse action notices.

Violating these laws can result in stiff penalties and legal action, but businesses may not even know that their hiring procedures are not compliant. At a time when labor shortages plague nearly every industry and more companies are tapping into the pool of individuals who carry criminal records, fully compliant vetting and notification procedures are essential.

Recent changes in New Jersey highlight how easy it is for variations in the law to escape the notice of even attentive hiring managers. With the advent of marijuana legalization, the state automatically expunged more than 350,000 marijuana-related convictions. This step created the potential for many individuals to find jobs more easily. However, state police had no duty to inform offenders about the cleansing of their records.

If even individuals directly impacted by a change to employment law may not know about the potential new employment opportunities available to them, it's no surprise that changes to less-visible Fair Chance laws escape employers’ notice.

In challenging labor market conditions, some employers are expanding their definition of an eligible and acceptable candidate. Carrying out routine background screenings is critical to addressing labor gaps without incurring unnecessary risks.

Within a regulatory landscape that continues to change, employers cannot rely on boilerplate procedures and FCRA forms without a complete understanding of their legal obligations. Businesses should establish governance procedures for the periodic re-evaluation of their hiring and vetting requirements. Staying on top of local initiatives is critical to developing hiring procedures that select suitable candidates effectively, fairly, and legally.

For employers facing changes in employment law, especially regarding criminal histories, ignorance is no defense against claims of employment discrimination. Through regular review of applicable local legislation and a thorough examination of hiring procedures, companies can continue to make smart hiring decisions without unnecessary legal exposure.