Ban-the-Box Laws Continue to Proliferate

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WRITTEN BY: Locke Lord LLP

The Fair Chance to Compete for Jobs Act of 2019 is set to become federal law effective December 2021. The law prohibits many federal agencies and federal contractors from requesting arrest and conviction information from a job applicant—at least until after extending a conditional offer of employment. Although this will be the first federal “ban-the-box” legislation to become law, 35 states, Washington, D.C., and numerous cities have already adopted similar requirements for state and local agencies and contractors.

With the majority of state and federal governments already adopting some form of ban-the-box legislation for government contractors and agencies, the trend is to extend such prohibitions to private employers. Within the past few years, multiple cities and 14 states have adopted legislation that prevents employers, both private and public, from requesting conviction and/or arrest information before extending conditional offers of employment.

Notably, House Democrats are already looking to follow suit with H.R. 1598 (the “Workforce Justice Act of 2021”). If passed, the federal government would withhold funds provided under the Edward Byrne Memorial Justice Assistance Grant (JAG) program from any state that refuses to extend ban-the-box legislation to private employers. More specifically, the Act would require states to prohibit private employers from (1) requiring a job applicant to disclose a criminal record, (2) asking about the criminal record of a job applicant prior to making a conditional offer of employment, and (3) conducting a criminal background check prior to making a conditional offer of employment.?That legislation is currently being reviewed by the House subcommittee on Crime, Terrorism, and Homeland Security.

Whether or not the Workforce Justice Act ultimately passes both houses of Congress, employers should be on the lookout for new legislation in their respective states and municipalities.?This type of legislation often falls into one of two categories: either outright prohibitions against asking for criminal history information prior to making a conditional offer of employment, or stringent requirements that employers analyze conviction records prior to making employment decisions based on criminal history.

Colorado is an example of an outright prohibition. Starting September 1, 2021, private employers in Colorado (with 11 or more employees) will be prohibited from asking for criminal history information on an initial employment application and barred from stating in an advertisement or application that individuals with a criminal history will not be considered or should not apply for a job.

Illinois is an example of the laws imposing stringent requirements on the use of criminal conviction information. On March 23, 2021, Illinois Governor Ptitzker signed the “Employee Background Fairness Act” into law. Going a step further than many other states, and following the approach taken by New York, Illinois now limits an employer’s ability to consider an applicant’s criminal history to only those circumstances in which either (1) there is a substantial relationship between the applicant’s prior criminal offenses and the employment sought or (2) employing the applicant would “involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” The new law requires employers making this determination to consider certain delineated factors before withdrawing a conditional offer of employment on the basis of a candidate’s criminal history. These factors comprise:

• the length of time since the conviction;
• the number of convictions that appear on the conviction record;
• the nature and severity of the conviction and its relationship to the safety and security of others;
• the facts or circumstances surrounding the conviction;
• the age of the employee at the time of the conviction; and
• evidence of rehabilitation efforts.

If, after considering these factors, an employer decides to disqualify an employee, the employer must provide written notice to the individual of (1) the disqualifying conviction(s), (2) the conviction report, and (3) the right of an employee to respond.

Private employers subject to ban-the-box legislation should take a detailed look at their application process to ensure it complies with local requirements, especially if their city or state has adopted legislation similar to Illinois or New York. Failing to comply with ban-the-box legislation can lead to litigation and/or hefty penalties. Employers with questions regarding ban-the-box requirements, or seeking help with the employment application and review process, should reach out to trusted counsel to help navigate these laws.