Over the last ten years, a flurry of "ban-the-box" laws have been enacted, on the state and local level. Such laws are now being passed at the federal level. In response, many employers reevaluated how they used criminal history screens and background checks in hiring. Now, lawmakers in several jurisdictions—like New York City, Philadelphia, and Illinois—are expanding existing laws, imposing new, more stringent requirements on employers. As a second wave of "fair chance" legislation starts to form, lawsuits related to criminal history screens and background checks have also intensified. The shifting legal landscape and growing risks of litigation present challenges for organizations large and small. Prudent employers will take this opportunity to review existing practices and build a compliant, flexible system for hiring new talent.
What Are "Ban-the-Box" or "Fair Chance" Laws?
Fair chance laws aim to reduce stigma and increase access to employment for people with arrest or conviction histories. Generally, these laws dictate whether and when an employer can inquire into a job applicant's criminal history, and the ways in which the employer can evaluate convictions when hiring. DC's ban-the-box law (passed in 2014) follows a trend seen in other jurisdictions: It prohibits employers from asking about criminal histories until a conditional offer of employment is made. A covered employer may then disqualify an applicant on the basis of a conviction, but only with good reason after conducting an individualized assessment, weighing multiple enumerated factors (like how the conviction relates to the job duties, or how recent or serious it was). In many jurisdictions, such as New York City, these laws also require employers to provide written notice to disqualified applicants and limit how employers can use background checks, arrest histories, and sealed records.
What Should Employers Do?
Given recent litigation and legislative activity in this area, employers would be well served to take the following steps:
- Look out for new laws, like the amendments in NYC and Philadelphia. Keep an eye out for changes in the law and bring your practices into compliance as they take effect. Some recent changes include:
- New York City's amendments to its 2015 Fair Chance Act (FCA), effective July 29, 2021. With these amendments, the FCA's requirements related to applicant/employee convictions now apply to pending or open criminal charges, arrests, and accusations. The amendments also prevent employers from, at any point, asking about or considering "non-convictions"—such as dismissed cases or cases that result in non-criminal offenses under the law (except for an applicant's driving record).
- Philadelphia's amendments to criminal and credit history laws, effective March 21, 2021 and April 1, 2021. Among other changes, the Philadelphia amendments extend existing criminal history limitations and protections to current employees (as opposed to only "applicants"), as well as to independent contractors and gig economy workers. Consider how an amendment like this might impact the actions you take with current employees.
- Fair Chance Act for federal contractors, effective December 20, 2021. The federal Fair Chance Law, passed in 2019 as part of the National Defense Authorization Act, will prohibit federal government contractors from asking about or using criminal history in employment decisions for certain positions.
- Carefully assess any "carve-out" exemptions. Take time to understand applicable carve-outs in ban-the-box laws, particularly if your organization hires educators; healthcare, childcare, or elder care workers; or security personnel. In addition to the exemptions, pay close attention to laws requiring that you conduct background checks. Failing to screen for criminal history may leave your organization exposed to negligent hiring suits, which can be costly.
- Keep in mind other legal obligations. As you tackle ban-the-box issues, be mindful of related requirements under the Fair Credit Reporting Act (FCRA) (establishing rules employers must follow related to background checks and credit screening) and Title VII (prohibiting discrimination in employment), as well as state and local discrimination laws. Criminal record screens have opened the door to "disparate impact" actions under Title VII—including claims that certain hiring policies disproportionately exclude people of color.1 Recent seven-figure settlements in FCRA and Title VII cases involving criminal history and background checks highlight the potential risk.
- Confirm your policies are in compliance with new and existing laws. Employer obligations differ from one city or state to the next. You'll need to determine what legal restrictions apply to your organization, then ensure that your policies and practices comply. To that end, you should consider:
- Reviewing your hiring and screening programs (e.g., job application forms, job postings, offer letters, background check procedures) and determine if questions and qualifications related to criminal histories may need to be removed. (A recent report found that 94% of complaints against employers under DC's fair chance law alleged the unlawful presence of a criminal background question on a job application.)
- Ensuring that you have the background check disclosure forms, written notices, and any other documents required for compliance. Be sure that any documents specific to an applicant or employee—such as the "Notice of Intent to Take Adverse Action" and the "Fair Chance Notice" under NYC's FCA—can be modified to account for individualized analyses.
- Updating training so that your managers involved in hiring make appropriate inquiries, at the appropriate time. Interview questions may need to be reviewed. Be sure that supervisors and managers understand the types of information that can and cannot be taken into account and ensure that any consideration of an applicant or employee's criminal history follow the steps outlined under the law.
- Reviewing Code of Conduct or discipline policies. To the extent a ban-the-box law applies to arrests or convictions involving current employees, check that your behavior-related policies and procedures are also compliant.
- Remaining consistent in how you apply your policies. Any screens related to criminal history should be narrowly tailored to the positions you are hiring for.
Venable LLP has a nationwide team of Labor & Employment attorneys with deep experience in policy development, litigation prevention, and client training in a wide range of disciplines. Please feel free to reach out to us to discuss how our attorneys can help you ensure compliance across your hiring and employment practices.
[1] See, for example, EEOC v. Dolgencorp LLC, 249 F. Supp. 3d 890 (N.D. Ill. 2017), a disparate impact case resulting in a three-year consent decree and $6 million settlement fund for black applicants screened out by Dollar General's criminal background check process.