For many years, employers included a question on the employment application about a person’s criminal history. However, in the past two or three years, various states and municipalities have adopted “ban the box” laws that prohibit employers from asking about an employee’s criminal history until after a job offer has been made.
Although Florida has not yet adopted such a law, some local municipalities, such as Tampa and Jacksonville, have adopted such practices for their own cities. While these local ordinances only apply to the city government itself, it’s not a stretch to imagine that they will expand to public employers at some point.
The intent behind “ban the box” laws is to give certain individuals an opportunity to be considered for employment despite their past criminal histories. These initiatives are to provide applicants a fair chance by removing the conviction history question on the job application and delaying the background check inquiry until later in the hiring.
Even if your state doesn’t currently have a “ban the box” law, some employment law attorneys are recommending that employers adopt this practice and remove questions about criminal convictions/histories from their applications. At a minimum, this information shouldn’t be shared with hiring managers who may not want to consider the individual for employment despite the fact that a criminal conviction isn’t job related. That is why it’s important for those companies with a Human Resources Department to review applications before sending them to the hiring manager. The HR Department is generally better able to take a more neutral position in determining whether or not a particular criminal history is related to the job.
The Equal Employment Opportunity Commission (EEOC) would prefer that employers wait until a job offer has been extended before evaluating the individual’s criminal history. The EEOC has determined that using conviction records tends to have an adverse impact on certain minorities. In their enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, the EEOC requires employers to consider the following when making an employment decision involving an individual with a criminal history:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and/or completion of the sentence; and
- The nature of the job held or sought.
If you haven’t reviewed your employment application recently, the time to do so is now. Also consider implementing a process of asking about criminal history after a job offer has been extended.
Contributed by Christine Crews, SPHR, SHRM-SCP is Vice President of Human Resource Services for the Employers Association Forum, Inc. (EAF). EAF is a non-profit corporate membership-based association dedicated to serving the business and HR communities with world-class HR tools, hotlines & legal compliance, news & trends, surveys & economic data, benefits & insurance, risk management, training & consulting, and leadership & organizational development. HCCMO members receive discounted rates on all EAF classroom training at EAF’s training center in Longwood. Click here to learn more about EAF membership benefits http://eafinc.org/about-eaf/value-of-membership/.