Ban the Box legislation is a growing national trend and is impacting all types - and sizes - of employers. Lawyers specializing in workplace issues say that by not banning the box, employers may face liability and a lawsuit from the United States Equal Employment Opportunity Commission.

Nationwide, 70 cities and counties and 13 states have passed a law that eliminates questions about a job candidate's criminal history on initial applications for positions in the public sector. Six of those states have extended the ban to private employers, but some rather prominent companies have struggled with compliance. 

For example, according to this article in the Minneapolis Star Tribune, the Minnesota Department of Human Rights recently investigated complaints involving the job applications of more than 50 companies and in the majority of cases found applications violating the ban the box law.

Many of the problem job applications still asked if the person had ever pleaded guilty to - or been convicted of - a crime, and asked other questions about misdemeanor convictions, or alcohol/drug-related driving offenses.

Outdated applications still online

In some cases, including those with huge employers Target and 3M, the issue was old ATS platforms with the now illegal questions (for Minnesota) still online. 

It’s estimated that one in four adults in the U.S. has an arrest or conviction on record, and the law is aimed at giving ex-offenders a better shot at going further in the hiring process. 

Ban the box laws don't mean that businesses have to hire convicted criminals, or that they can't ask about a candidate's criminal history or conduct background checks on potential hires. It just means they can't ask about it up front.

“There’s absolutely a deep stigma attached to having a criminal record, and when someone thinks of a criminal record, they probably assume it’s for a violent conviction,” said Michelle Natividad Rodriguez, a staff attorney for the National Employment Law Project  “A record could mean any number of things, including minor arrests, convictions that are decades old, or other reasons that applicant wouldn’t be a risk on the job.”

Disclosure difficulties  

According to recent surveys, as many as two thirds of employers ask job applicants to disclose criminal records on the initial application. Including such information on an application can severely restrict an ex-offender's chances of obtaining employment. 

In one experiment testers purporting to have a criminal record were nearly 50% less likely to have a callback or a job offer. However, those testers who had an actual interaction with a hiring manager, such as in a job interview, were almost six times more likely to receive a job offer or callback compared to those testers who did not interact with employers.

Jesse Stout is a criminal defense attorney and policy director at San Francisco-based Legal Services for Prisoners with Children. He said in this interview with Fox Business that a job candidate deserves to have a "first encounter" where they are not judged solely on their past.

A candidate mentioned in the Star Tribune article says they recently did an informal Skype interview with Robert Half Technology, which then sent him an e-mail with two attachments. One was an employment application with the box on it, although instructions state not to answer the question if applying in certain places where there are ban the box laws. 

Robert Half spokeswoman Jamie Carpen said the application was outdated and called it a “clerical error.”

Pros and "cons"

A friend of mine runs a contract manufacturing company. He permanently employs both skilled and unskilled workers, and uses a local staffing firm as well, and says he actually agrees with the law.

"Some people may have made a mistake in the past and should be able to explain it. We have hired people with criminal records. But we also haven't hired - or in one case fired - someone for denying they had a record when the background check came back positive."      

I came across the comments of a staffing pro in an online chat room discussing the ban the box laws. She said it's not a discussion about whether it's fair to "discriminate" against someone for something they may have done in the past, it's about adding to the cost of hiring.

"With a check box, we could weed out those people (at least those who answer honestly) without wasting time interviewing. Today, we might spend time interviewing, then pay our background search vendor $300, only to find information that we could have had before we went so far in the hiring process. It is not illegal to not hire someone because of their criminal history, so it seems like a disconnect to make it illegal to ask them about that history before you've invested time interviewing them."

It actually is illegal

Here is where the waters get murky though. In April of 2012 the Equal Employment Opportunity Commission signaled that it would begin to crack down on employers who use the criminal histories of job applicants to discriminate against them illegally. And it is illegal to have a blanket ban on hiring anyone with a criminal record.

Under the guidelines, an employer can exclude applicants with criminal convictions provided it can demonstrate that the exclusion is “job-related for the position in question and consistent with business necessity.”

The easiest way for employers to do that, according to the E.E.O.C., is to develop a “targeted screen considering at least the nature of the crime, the time elapsed and the nature of the job.”

Obviously that can present a conundrum for hiring managers and companies, particularly smaller ones, who have to go through a painstaking process taking into account multiple factors. 

“It’s almost like you’re being squeezed on both sides of the law,” said HR consultant Andrea Herran in this article in The New York Times. “If somebody’s making them nervous with their criminal history, and they’re worried about getting sued on the other side, what’s a business owner supposed to do? Most business owners are going to want to play it safe and say, ‘I’m not going to want to give the job to someone with a criminal record.’”

Tags: The New York Times, Target, Hiring, Ban the Box, Equal Employment Opportunity Commission, 3M, HR best practices, Minneapolis StarTribune, Ex-cons, Hiring discrimination, Criminal records