By Gabriel Mendoza

Introduction

“Check here if you have a felony conviction.”[1] “Check if you’ve ever been arrested.”[2] “[Check] if you have a criminal record.”[3] Effective January 1, 2018, California joined nine other states—as well as the District of Columbia and thirty U.S. cities and counties—in mandating that both public and private employers remove questions about convictions and criminal history from job applications.[4] These changes arose from the “Ban the Box” movement, which has led to the adoption of “Fair Chance” or “Fair Opportunity” ordinances applicable to both public and/or private employers in over 150 cities, municipalities, and counties.[5]

So, what do these ordinances look like? In California, Assembly Bill No. 1008 (“AB 1008”) provides that an employer with five or more employees commits an unlawful employment practice if it inquires into an applicant’s conviction history before first tendering a conditional job offer.”[6] In effect, AB 1008 delays the background check to mitigate potential discrimination by denying employers the ability to “consider, distribute, or disseminate information related to . . . prior arrests, diversions, or convictions.”[7] The intention is to ensure employers evaluate applicants based on their qualifications and merit. After tendering an offer, the bill then calls for an employer to make an “individualized assessment” to determine whether an applicant’s criminal history “has a direct and adverse relationship with the specific duties of the job.”[8] Further, if an employer later rescinds a conditional offer, AB 1008 requires that the employer “notify the applicant in writing” about the specific reasons for the adverse action against the applicant.[9] AB 1008 even allows the applicant five business days to respond to the employer’s action.[10] Lastly, if the employer maintains its position, the employer may justify its reason for its final decision, and the applicant—if the he or she feels their offer was illegitimately rescinded—has the right to file a complaint with the California Department of Fair Employment and Housing.[11] Nonetheless, these ordinances vary from locality to locality. Thus, even though AB 1008 is a statewide ordinance, laws vary among jurisdictions throughout the state.[12]

Show Me the Numbers

Numerous studies have been conducted to examine the scope of Ban the Box ordinances. In 2012, the National Employment Law Project (“NELP”) found that roughly 70 million people had criminal records—of which, about 700,000 are reintroduced to society each year after incarceration (nearly one in three U.S. adults).[13] Further, a 2015 New York Times/CBS News/Kaiser Family Foundation poll found that 34 percent of unemployed men from ages 25 to 54 had criminal records,[14] which seems to corroborate NELP’s 2012 study.

Enter Ban the Box ordinances. In 1998, Hawaii was the first state to implement a criminal history inquiry ban for public employers.[15] It was not until 2009 that Minnesota became the first state to adopt the laws for both public employment and private employers; several cities followed suit in 2010.[16] Larger-scale state and city adoption did not begin until 2013 and 2014.[17]

Recommendations for Employer-Clients Affected by Ban the Box Laws

What do these ordinances mean for employer-clients—public and private, nationwide—who fall within Ban the Box jurisdictions? First, attorneys must identify and advise affected clients to comply with the new ordinances by making the necessary modifications to their applications and hiring processes. Specifically, all employers in Ban the Box jurisdictions should remove from their applications all inquiries pertaining to convictions and even arrests (collectively henceforth, “criminal history”), as arrest records may show only that one was arrested and may not indicate that one was released without charges.[18] Second, employers should refrain from asking applicants questions about criminal history until tendering a conditional job offer. Employers should also train managers and hiring panels not to ask questions regarding criminal history. Multi-jurisdictional employers should be especially leery of bright-line or benchmark hiring policies that could expose them to liability under these new laws (i.e., a policy that applies with equal force across all jurisdictions). Finally, because ordinances such as AB 1008 allow for overlap with city and county-level Ban the Box rules, employers should seek guidance from background screening firms to better ensure compliance.[19]

Examples of Variance by Locality

Again, though states adopt broad Ban the Box laws, cities and counties may choose to adopt their own ordinances, which may indeed overlap with state-adopted laws. Los Angeles’ Ban the Box ordinance, effectuated January 22, 2017, extends to private employers with ten or more employees.[20] This ordinance prohibits private employers from inquiring about applicants’ criminal history, but it also contains certain exceptions, a remedial process for adversely affected applicants, and civil and administrative enforcement provisions.[21]

By contrast, San Francisco’s Fair Chance Ordinance (“FCO”)—effectuated August 2014—prohibits “covered employers” with at least twenty employees from ever considering a conviction of over seven years old, unless the employment requires supervising minors or dependent adults.[22] Indeed, the FCO includes various other terms that differ from both Los Angeles’s ordinance and the later-effectuated AB 1008 bill.[23] Though AB 1008 may supersede municipal-level ordinances, it does not nullify the local ordinances so plenty of overlap and additional terms remain, imposing further burdens on employers.[24]

Recommendations for Multi-Jurisdictional Employers

Employers who conduct business across multiple states or even just across several county lines must pay careful attention to their hiring practices. Rather than furthering statewide or nationwide benchmark hiring practices, employers should prioritize compliance over uniformity. For instance, Los Angeles and San Francisco’s Ban the Box ordinances require employers to put employees on notice that a criminal background check will be sought if or when a conditional job offer is tendered.[25] New York City’s ordinance, on the other hand, prohibits employers from even mentioning that a background check will be conducted until after the conditional offer is made.[26] AB 1008 allows adversely affected applicants to seek procedurally-established redress if necessary.[27] An assiduous practice would be for employers to establish some sort of communication with local or county-level background screening firms to ensure compliance with the current local ordinances, and tailor their hiring practices to each respective locality.[28] For example, background screening expert services, such as Employment Screening Resources, offer to “guide [employers] through compliance with [the] various rules.”[29]

Exemptions and Possible Unintended Consequences

The Ban the Box ordinances vary regarding which employer categories are exempt from the prohibition, though most seem to carve out exemptions for safety-sensitive positions. For example, California has carved out exemptions for Farm Labor Contractors, employees of criminal justice agencies, and agencies that are required (by federal, state, or local law) to undergo conviction background checks.[30] However, new laws—such as AB 168, which prohibits all employers from inquiring about salary history[31]—could create obstacles even where employees are background checked. As a slight aside, in addition to Ban the Box laws, localities are adopting their own versions of the salary inquiry prohibition,[32] which could similarly lead to problems concerning applicants whose financial records cannot be involuntarily disclosed.

Broader discrimination may also be an unintended consequence of Ban the Box ordinances. For instance, a study published in the National Bureau of Economic Research found that Ban the Box laws have decreased the probability of employment by “5.1 percent for young, low-skilled black men, and 2.9 percent for young, low-skilled Hispanic men.”[33] This data was collected using a sample of 855,000 men ages 25 to 34, “60 percent of whom [were] classified as low-skilled, meaning they [did not] have a college degree.”[34] When employers cannot inquire about an applicant’s criminal history, inevitably a broader discrimination exists “against demographic groups that are more likely to have a criminal record.”[35]

Though evidence suggests that discrimination is likely to happen regardless of these ordinances, employers are more likely to “statistically discriminate” using “observable information that is most correlated with the unobservable information of interest.”[36] Observable information could simply be whether the applicant has a college degree, which could speak to an applicant’s motivation or intelligence.[37] However, such information may also include demographic characteristics like race and ethnicity, and certain employers may typecast minority applicants as more likely to have a criminal record.[38] Hence, Ban the Box ordinances may actually incentivize smaller employers to lean more heavily on observable characteristics and stereotypes, thereby leading to a different form of employment discrimination.

Conclusion

Ultimately, employer-clients might expose themselves to discriminatory suits if such discrimination manifests. Employers should be careful to properly document the reason(s) why an applicant is no longer considered for a position. If done correctly, employers could get out in front of Ban the Box laws and use their hiring practices as a positive recruitment tool. That is, compliance with Ban the Box ordinances could mitigate potential claims of employment discrimination and allow for a more diverse work environment, which can help employers stay more relevant in today’s competitive job market.

[1] Tina Rosenberg, Have You Ever Been Arrested? Check Here, N.Y. Times (May 24, 2016), https://www.nytimes.com/2016/05/24/opinion/have-you-ever-been-arrested-check-here.html.

[2] Id.

[3] Id.

[4] See Beth Avery & Phil Hernandez, BAN THE BOX: U.S. CITIES, COUNTIES, AND STATES ADOPT FAIR HIRING POLICIES, nelp (Feb. 8, 2018), http://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/ (showing a list of states that have adopted Ban the Box laws).

[5] Debbie Lamb, Ban the Box: Where Are We Now?, Sterling Talent Solutions (May 3, 2017), https://www.sterlingtalentsolutions.com/blog/2017/05/ban-the-box-laws-in-2017/.

[6] AB-1008 Employment discrimination: conviction history, Assembly Bill No. 1008, Ch. 789 (Cal. 2017), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB1008 [hereinafter AB-1008].

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] See Thomas Ahearn, California Passes Ban the Box Law to Prohibit Private Employers from Asking about Criminal History, ESR Check: ESR News Blog (Oct. 16, 2017), http://www.esrcheck.com/wordpress/2017/10/16/california-passes-ban-the-box-law-to-prohibit-private-employers-from-asking-about-criminal-history/ (“[T]he bill leaves intact overlapping city and county Ban the Box rules – such as those laws in Los Angeles and San Francisco – and does not give a clear state-wide solution.”).

[13]Anastasia Christman & Michelle Natividad Rodriguez, Research Supports Fair Chance Policies, NELP 1 (Aug. 1, 2016), http://www.nelp.org/content/uploads/Fair-Chance-Ban-the-Box-Research.pdf (Based on the U.S. Census 2012 population estimate).

[14] Binyamin Appelbaum, Out of Trouble, but Criminal Records Keep Men Out of Work, N.Y. Times (Feb. 28, 2015), https://www.nytimes.com/2015/03/01/business/out-of-trouble-but-criminal-records-keep-men-out-of-work.html. See also Liz Hamel et al., Kaiser Family Foundation/New York Times/CBS News Non-Employed Poll, KFF.org (Dec. 11, 2014), https://www.kff.org/other/poll-finding/kaiser-family-foundationnew-york-timescbs-news-non-employed-poll/.

[15] See Ban the Box: What Is It & Where Does It Apply?, Trusted Employees (Mar. 6, 2017), https://www.trustedemployees.com/learning-center/articles-news/what-states-ban-the-box/ (showing a list of “States that Ban the Box on State Employment Applications”).

[16] Id.

[17] Id. See generally About: The Ban the Box Campaign, Bantheboxcampaign.org, https://bantheboxcampaign.org/about/#.Wn9lTZM-ekY (last visited Mar. 9, 2018) (discussing roots of the Ban the Box Campaign).

[18] See Rosenberg, supra, note 1 (Most of the 70 million Americans who have criminal records “were either convicted of misdemeanors . . . never charged, had charges dropped or were found not guilty.”).

[19] See e.g., Ahearn, supra, note 12 (Employment Screening Resources® is a “leading global background check provider” that assists employers).

[20] Jamerson C. Allen et al., Los Angeles Enacts ‘Ban-the-Box’ Legislation, SHRM (Dec. 20, 2016), https://www.shrm.org/ResourcesAndTools/legal-and-compliance/state-and-local-updates/pages/los-angeles-enacts-ban-the-box-legislation.aspx.

[21] Id.

[22] Office of Labor Standards Enforcement, Fair Chance Ordinance (FCO), SFGov.org, http://sfgov.org/olse/fair-chance-ordinance-fco (last visited Feb. 17, 2018).

[23] Id. (Some of these differences include a difference in minimum employee requirement and whether the employer may put the applicant on notice about the background check.)

[24] Id. See also AB-1008, supra, note 6 (Section 12952(e) states, “The remedies under this section shall be in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law, including any local ordinance.”).

[25] Lisa Nagele-Piazza, Do Ban-the-Box Laws Work?, SHRM (Jan. 12, 2017), https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/do-ban-the-box-laws-work.aspx.

[26] Id.

[27] Id.

[28] See, e.g., id. (“In California, the statewide ban-the-box law applies only to public employers, but San Francisco’s local ordinance applies to private employers with 20 or more workers.”).

[29] California Passes Ban the Box Law to Prohibit Private Employers from Asking about Criminal History, Employment Screening Resources (Oct. 16, 2017), http://www.esrcheck.com/wordpress/2017/10/16/california-passes-ban-the-box-law-to-prohibit-private-employers-from-asking-about-criminal-history/.

[30] AB-1008, supra, note 6.

[31] AB-168 Employers: salary information, Assembly Bill No. 168, Ch. 688 (Cal. 2017), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB168.

[32] See Roy Maurer, California ‘Bans the Box,’ Prohibits Salary History Queries, SHRM (Oct. 23, 2017), https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/california-bans-the-box-prohibits-salary-history-queries.aspx.

[33] Alana Semuels, When Banning One Kind of Discrimination Results in Another, The Atlantic (Aug. 4, 2016), https://www.theatlantic.com/business/archive/2016/08/consequences-of-ban-the-box/494435/.

[34] Id.

[35] Id.

[36] Jennifer L. Doleac, “Ban the Box” does more harm than good, Brookings (May 31, 2016), https://www.brookings.edu/opinions/ban-the-box-does-more-harm-than-good/.

[37] Id.

[38] Id.