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Update Roundup: What’s New with “Ban the Box”

By Michael Klazema on 10/22/2020

Hiring new employees is often a more complex process than business owners anticipate. Alongside crafting enticing job advertisements and finding time to schedule interviews, there are many legal concerns to consider. Employment law doesn’t cover only what happens in the workplace or at the time when the employer-employee relationship terminates. In many cases, it also protects job seekers from potential discrimination.

“Ban the box” rules are the most widespread and notable example of such anti-discrimination efforts. Typically restricted to a city or county but sometimes applicable to an entire state, these rules limit an employer’s ability to ask about past criminal acts. To provide more opportunities for past criminal offenders, advocates press for opportunities to allow those with a record to re-integrate into society.

From time to time, municipalities revise or update their ban the box guidelines; at the same time, new areas ban the box every year. Employers must take care to remain up-to-date on these changes as they operate and hire. What are the latest changes that employers should know about? As of October 2020, there have been three notable changes across the nation.

First, California released an extensive guide for employers on the state’s “Fair Chance Act” in advance of changes to the rules that control employee background checks. The new rules extend protections to union members for pool-based employment and “applicants” who begin working between an initial interview and the completion of a background check. California employers should review the FAQ guide to understand their new obligations. The new rules allow local jurisdictions to impose even stricter restrictions if desired.

Next, Hawaii made changes to its long-standing ban the box rules to make them even firmer. Previously, employers could not consider criminal charges older than 10 years. The new rules restrict felony considerations to no more than seven years and misdemeanors to no more than five years. Legislators hope to prevent denials based on old and minor convictions. 

Finally, the city of St. Louis, Missouri adopted extensive new ban the box guidelines for all employers with 10 or more workers on the payroll. The St. Louis rules feature many common hallmarks of ban the box efforts, including:

  • Prohibitions against “exclusionary language” in job postings, such as “no felons.”
  • Preventing inquiries about criminal history on job applications.
  • Preventing the use of public criminal information about an applicant.
  • Stopping employers from basing decisions on criminal history that does not have a clear connection to the duties of the job. Employers must also look at factors such as the severity of the crime and how recently it occurred.

St. Louis employers may use background checks, such as the US OneSEARCH, only once they’ve interviewed an applicant and determined that they are otherwise suitable for the position. Employers cannot selectively background check employees.

Use our Learning Center to keep up with important changes in your region.

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