If your employment application asks whether the applicant has ever been convicted of a felony, you may need to consider whether to “ban-the-box” that asks that question of your applicants. Why? Because nationally, over 100 cities and counties and over 185 million people live in a ban-the-box or fair-chance jurisdiction. In addition, the Equal Employment Opportunity Commission is gunning for employers who exclude everyone with a criminal history from employment.
The “ban the box” movement seeks to have employers consider an individual candidate’s job qualifications while prohibiting the employers from taking into account a candidate’s criminal history in the beginning of the application process. Ban-the-box aims to provide applicants with a “fair chance” at employment by delaying any consideration of criminal history until a preliminary job offer is made.
Austin is the first city in Texas to “ban the box,” but it is likely that more areas of the Lone Star State will follow in the near future. As of March 24, 2016, Austin passed the Fair Chance Hiring Ordinance, which prohibits employers from asking about or taking under consideration the criminal history of an individual until after making a conditional employment offer. While this ordinance does not cover state agencies or federal employment, it does apply to any private organization with 15 employees or more in the Austin city limits.
So Texas Panhandle employers don’t have to comply with the Austin ordinance if they have no employees in Austin, but they do need to worry about the EEOC claiming that a local employer discriminates in their hiring on the basis of race or ethnicity (it is the official position of the EEOC that “national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions”).
So the wise employer will go ahead and take the “ever been convicted of a felony” question off of the application for employment. In addition, for both prudence and economic reasons (detailed criminal background checks aren’t cheap), smart employers will wait until they actually make a conditional job offer before checking the criminal record of a potential employee.
In addition, an employer should not:
- State or imply that any applicant’s criminal history automatically disqualifies him/her from consideration for the job.
- Question a prospective candidate about his/her criminal history prior to making a conditional job offer.
- Pass up a candidate who does not provide a criminal history before an offer of conditional employment.
An employer should:
- Make an employment decision in good faith based on an applicant’s qualifications (or lack thereof).
- If a criminal record does exist for the applicant, make an individual assessment, considering the nature and severity of that particular applicant’s offense(s) before making a decision.
- Take into account the timeframe since the conviction(s).
- Analyze the job duties and the fit of that job for the specific applicant rather than just excluding all persons who have had ever had a felony conviction
If you use a third party service to perform the criminal background check, don’t forget to comply with the Fair Credit Reporting Act, including providing the required notices to the applicant of the use and the results of the background check.
The trend is towards getting employers to accept that if an employer does not wish to hire an individual, it should be because that person is not suitable for the job – not because he or she has a past criminal transgression. That will be difficult for many employers to accept.
However, even if you disagree with the philosophy, you should at least not wave a red flag in front of the EEOC. Take the felony question off of your applications. It is the smart move.