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Ban the Box
Published Monday, December 5, 2016

If somebody is gracious enough to give me a second chance, I won’t need a third.” - Pete Rose

Have you ever been arrested or convicted of a crime that has not been annulled by a court? Maybe driving after having a few too many beers and being stopped by a cop? Or possessing illegal drugs? These are common charges, but they don’t necessarily make a person a hardened convict. Employers in NH can ask job applicants these questions, at least for now, and it can make landing a job nearly impossible.

There is now a growing movement on the federal, state and local levels to prohibit employers from asking questions about an applicant’s criminal history until later in the hiring process. That legislation is commonly referred to as “Ban the Box,” as it would effectively ban employers from asking applicants to check a box indicating if he or she had a criminal history. The thought behind many of these bills is that people with a criminal past are chronically under-employed, which may cause them to re-offend.

Also, based on statistics showing that members of racial and ethnic minority groups are arrested and even convicted in greater numbers than whites, criminal history checks are viewed as a form of race or national origin discrimination.

Guidance for Employers
In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance to employers which suggested that employers, because of the lack of due process with arrests when compared to convictions and because of the disparate impact on racial and ethnic minorities, should focus more on convictions, and even then only when considering the nature of the job, the nature of the applicant’s convictions and the time that has elapsed since his or her last offense.

The EEOC did say that in some instances (such as day cares, schools or banks), an applicant’s arrest record could also be considered, but clearly the agency was pushing employers to generally focus on convictions. Again, this was only guidance and it is at odds with what employers in NH can ask job applicants. That may not be for long, though, because in the last session of the state Legislature, a bill, SB 413, was introduced in the state Senate to Ban the Box. That bill failed, but if the trend in the nation is any indication, that bill or a similar initiative will likely be introduced in the next legislative session.

Pressure Increases
There are 24 states in nearly every region of the country that have adopted Ban the Box laws. The nearby states of Massachusetts, Vermont, Connecticut and Rhode Island have laws in place that restrict an employer’s access to an applicant’s criminal history. Many counties and municipalities across the country have adopted similar restrictions. Not all of these laws are the same. In fact, some are very different, which presents a real challenge for employers with operations in several states.

For example, in New York, employers have to satisfy an eight-part test to justify why an applicant with a criminal history wasn’t hired. If they fail the test, they could face a discrimination claim, not based on race or national origin, but based on the applicant’s criminal history.

If that wasn’t enough, in November 2015, President Obama announced a new mandate to the Office of Personnel Management, the agency that develops and enforces federal government hiring policies and practices, to modify its rules to delay inquiries into criminal history until later in the hiring process. This was seen as a potential precursor to a bill in Congress, or perhaps before an executive order covering federal employees and federal contractors, to Ban the Box. There has already been a bill introduced in Congress that would allow non-violent offenders to have their criminal records sealed, shielding them from the view of prospective employers.

Another Hiring Challenge
This all comes at a time when employers are under increased pressure to hire the best and the brightest with limited recruitment dollars. Human resources professionals are also tasked with screening and vetting candidates to ensure not only a good fit in the job but also to ensure a safe and productive work environment. Background screening was already difficult because former employers, who are concerned about claims from former employees, are often reluctant to provide more information than the dates the person was employed by them.

So what are employers to do? They need as much information as they can get about a candidate to make the best decision, but sheepish former employers, privacy rights and Ban the Box initiatives are narrowing the scope of what employers can discover and use in the hiring process.

Employers should first determine which laws apply to them. Next they should look at their hiring policies, forms and practices to be sure they comply with those laws. Finally, they should stay tuned-in for even more changes coming, as there will certainly be more restrictions coming soon.

Attorney Jim Reidy is a shareholder at Sheehan Phinney where he is chair of the Firm’s Labor and Employment practice group. For more information, visit sheehan.com.

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