Ban the Box? Some Municipalities Go the Other Way

By Michael Klazema on 9/24/2020

Providing a path back to employment for formerly incarcerated individuals is a common goal, but not every locale is on board with the sweeping "ban the box" movement. While many areas place restrictions on when and how an employer can consider someone's criminal record, some have chosen to go in the opposite direction. Instead of banning the box, these municipalities want to make one message clear: felons need not apply. 

Missoula County in Montana is one such municipality. There, county commissioners looking at setting up a new contract for janitorial services devices to implement a three-year ban on felons convicted of crimes such as theft. Individuals with felony records involving these charges will need to wait three years before applying, while others, such as those convicted of DUI, can apply right away. The three-year time limit represents a compromise, down from a proposed five-year ban. 

Elsewhere, a small city in Pennsylvania decided to go even farther. There, after administrators uncovered a city employee with a felony record, commissioners proposed a blanket ban on all felons from city employment. If adopted, the measure would represent one of a very few extensively exclusive bans on individuals with a criminal history. According to supporters of the measure, it would make it clear that the city only employed the most trustworthy of applicants. 

According to the Equal Employment Opportunity Commission guidance issued in 2012, employers cannot merely bar all felons from employment. The EEOC holds such actions to be discriminatory. Only a demonstrable "business necessity" for barring individuals based on a felony conviction is grounds for such a policy. Information about the nature of a conviction obtained through services such as the US OneSEARCH by typically aids employers in understanding any potential relationship between a past conviction, the job in question, and future risk.  

Although there have been some court battles over the EEOC's guidance and its enforceability, federal courts continue to indicate that blanket bans on felons are unlawful. Thus it seems likely that an ordinance such as the one under consideration in New Castle would face legal challenges. Missoula County's ban, however, only temporarily bars felons with specific convictions from employment, and thus remains in alignment with EEOC guidelines. 

Employers must take care to keep their legal obligations in mind when crafting policies that concern individuals with criminal records. Not only are there many laws and local regulations to consider, but there is also the risk of engaging in discriminatory behavior, leading to legal exposure. A reversal of the "ban the box" movement is unlikely. 

Signs continue to point towards a trend of more lenient restrictions and greater opportunities. Following historic wildfires in California, the state's governor signed into law a bill that would provide a path to criminal record expungement and prospects for firefighting jobs for felons who participated in battling the flames. Though some places may swim against the tide, it seems clear that employers must adapt to the new realities of hiring.

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