Banning the Box on those Old Job Application Forms
While employment lawyers like myself — and the EEOC — have long cautioned employees against automatically asking job applicants about their criminal history, few companies would think twice (absent advice of learned counsel) about asking “Have you ever been convicted of a felony or a misdemeanor?” on their standard job application forms. After all, who wouldn’t want to know if a potential hire has a problem with drug abuse, violence, or … honesty? The question about criminal convictions has been popularly considered a good test of job applicants’ honesty and integrity. In fact, employers are often more inclined to pass up a candidate who lies about a minor offense than a candid one with a more serious offense in the distant past.
While such questions on application forms are still legal in Texas (where I live), Texas employers doing business in other states are quickly learning that they can face stiff penalties if they ask those questions elsewhere. Currently, twelve states — California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington — have passed “Ban the Box” laws that prohibit private employers from asking questions about conviction history on job applications. Many large cities — including New York City — have similar laws. A number of other states are in the process of considering such laws.
The biggest challenge for multi-state employers is whether they should use different job applications in different states or a uniform job application that passes legal muster in all states. Most of the states that have adopted these Ban the Box laws still allow employers to make inquiries about a candidate’s criminal history, but only after a conditional offer has been made or — in a few cases — after the employee has been invited to an interview. The hope is that employers who learn about a conviction later in the process will be less likely to summarily dismiss an ex-offender if they have spent some time getting to know the candidate.
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