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The Challenge of Banning the Box

Labor and employment attorney Paul M. Finamore, Esq. discusses the impact of "ban the box" legislation as it challenges employers to company not only with EEOC guidance, but also with state and local legislation that aims to protect applicants with criminal backgrounds to have fair access to gainful employment. These laws vary in coverage, timing and requirements, so multijurisdictional employers are faced with differing applications and requirements, creating complex administrative compliance mandates for those employers.

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This article by Paul M. Finamore first appeared in the January 2016 issue of the DRI For the Defense Magazine. Please contact Paul Finamore at pmfinamore@nilesbarton.com with any questions regarding this employment issue.

Negligent hiring claims are on the rise and are typically included in every claim arising out of an employee’s negligence. To defend against these claims, employers have moved to conducting background checks to identify quality candidates and eliminate unqualified or undesirable candidates. As a result, many candidates are not being considered based on their criminal history. The U.S. Equal Employment Opportunity Commission (EEOC) has determined that the consideration of criminal history, particularly as it relates to criminal charges not leading to convictions, can have a disparate impact on minority candidates and has issued guidance for employers about how to consider this type of information. Employers are challenged not only to comply with this EEOC guidance, but also to comply with state and local legislation that aims to protect applicants with criminal histories so that they can have a second chance when it comes to employment. This legislation is commonly termed “ban the box” legislation.

In what can only be characterized as a tidal wave of recent state and local legislation, many jurisdictions have jumped on the bandwagon to “ban the box” on employment applications relating to previous arrests or convictions. In the publication entitled Ban the Box Resource—Fair Chance Guide, the National Employment Law Project reported that 19 states and more than 100 cities and counties have adopted fair-chance hiring policies. Michelle Natividad Rodriguez & Nayantara Mehta, Ban the Box Resource—Fair Chance Guide (Nat’l Emp’t Law Project, Dec. 1, 2015), available at http://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/ (last visited Dec. 8, 2015). The scope of the issue is staggering. According to data published in connection with adoption of ban the box laws in Maryland, 92 million Americans, estimated at one in three adults, have criminal history. See Prince George’s County, Maryland Ban the Box, Bill No. CB-78-2014, and Montgomery County, Fair Criminal Record Screening Standards Law, Expedited Bill No. 36-14 (citing the U.S. Department of Justice’s Bureau of Justice Statistics). Annually, nearly 700,000 people are released from incarcer¬ation and become job seekers. Id.

Genesis of Ban the Box

The actual genesis of this new wave of legislation is unclear, but it is probably related to the EEOC enforcement guidance that was issued on April 26, 2012. EEOC Enforcement Guidance, No. 915.002 (Apr. 26, 2012), http://www.eeoc.gov/laws/guidance/ arrest_conviction.cfm (last visited Dec. 8, 2015). While some people’s view of this may differ, this guidance simply reiterated the previous guidelines that the EEOC had issued over the years. Regardless, it created a stir: Nine attorneys general from around the country took issue with it. Among other things they perceived it as imposing unfair costs on businesses. The EEOC, in response, published a letter on August 29, 2013, to the attorneys general in which it explained the background and clarified the guidance, including that conducting criminal background checks was not illegal. Jacqueline A. Berrien, Chair, U.S. Equal Opportunity Comm’n, to State Attorneys General (Aug. 29, 2013), http:// www.eeoc.gov/eeoc/newsroom/wysk/criminal_ background_checks.cfm (last visited Dec. 8, 2015). However, the EEOC went further to discuss that the guidance recommended a two-step process, including a “targeted screen” as the first step. During a targeted screen, employers should consider the nature of the crime, the amount of time that had elapsed since conviction, and the relationship of the conviction to the nature of the job for which an applicant applied. Once a targeted screen has taken place, the EEOC then encourages an “individualized assessment” of each applicant who the targeted screen eliminated to ensure that an applicant is not qualified or was eliminated from consideration mistakenly. It must be noted, however, that this guidance essentially relates to criminal conviction history. The EEOC has traditionally viewed criminal arrest history with disfavor because of its potential to impact minority candidates adversely because they statistically experience higher arrest rates nationally, compared to other persons, without being charged or having conviction records. This view is reflected in some, but not all of the ban the box legislation that has been enacted.

Ban the box legislation received a boost when fair chance employment practices were advocated by the My Brother’s Keeper Task Force, which was announced by President Obama in 2014. In its report to the president, the task force recommended that fair chance hiring legislation be enacted to allow candidates to compete on their merits rather than be unnecessarily disqualified based on past mistakes. My Brother’s Keeper Task Force Report to the President (May 2014) (see discussion beginning at page 49).

Purpose

Ban the box legislation is laudable in its purpose. It seeks to support families and to remove artificial barriers to employment by ensuring that persons with criminal backgrounds, albeit convictions or charges, have fair access to gainful employment. However, the laws vary in coverage, timing, and requirements, so multijurisdictional employers are faced with differing applications and requirements, which can create administrative nightmares for them.

The legislation does not mandate that persons who have been convicted of crimes be awarded jobs over other applicants who are better qualified, nor does it guarantee employment for persons with criminal backgrounds. The legislation allows applicants to submit their applications without fear of immediate rejection. What the legislation intends to avoid is employers making decisions not to hire based on a completed application with a box checked on an application that indicates that an applicant has a criminal conviction history. By permitting those with convictions to stand equally with other applicants, the a ban the box movement allows persons with conviction criminal histories the opportunity to compete for employment based on their own merits, after which, depending upon the timing permitted under the various laws, employers may review criminal conviction history consistent with existing law on this topic.

Some ban the box legislation includes provisions establishing criminal penalties for violations. For instance, if a covered employer uses criminal conviction information before making a conditional offer of employment in Baltimore, an employer risks criminal penalties under Baltimore’s ban the box legislation. In what can only be considered pure irony, violating the legislation may make an owner of a covered employer a beneficiary of the statutory protections. As with most antidiscrimination statutes, there is a provision intended to protect against retaliation for those reporting claimed violations.

Varying Application and Requirements: A Four- Jurisdiction Example

Four separate jurisdictions in the Baltimore-Washington D.C. metropolitan area have enacted ban the box legislation in the past year: (1) Washington D.C., Fair Criminal Record Screening Amendment Act of 2014, D.C. Act 20-422; (2) the city of Baltimore, Ban the Box—Fair Criminal-Record Screening Practices, Council Bill 13-0301; (3) Prince George’s County, Ban the Box, Bill No. CB-78-2014; and (4) Montgomery County, Fair Criminal Record Screening Standards Law, Expedited Bill No. 36-14.

While the underlying purpose of the legislation is the same, the laws differ in material respects that present challenges for employers operating within the 35-mile radius that covers the four different jurisdictions.

Coverage

Each law applies to different employers. Under the Washington D.C. act, covered employers are defined as having more than 10 employees employed in the district. The act makes no distinction between full-time and part-time employees. Under the Baltimore ordinance, covered employers are those having 10 or more full-time equivalent employees in Baltimore. The Montgomery County law applies to employers with 15 or more full-time employees in the county. The Prince George’s Code provision applies to employers with 25 or more persons employed full-time in the county.

For multijurisdictional employers, the complexity of determining whether or not it is a covered employer at its various sites is self-evident.

Timing

There are also differences in when employers may inquire regarding criminal history. Montgomery County and Prince George’s County permit these inquiries to occur after the conclusion of an initial interview. Baltimore and Washington D.C., in contrast, only permit an inquiry after a conditional offer of employment has been made. With the four jurisdictions being approximately 35 miles apart, covered employers with employees hired in different jurisdictions will need to be aware of these timing differences and may decide, as a matter of administrative ease, to only require a criminal history after making a conditional offer of employment. However, doing so makes covered employers more susceptible to claims that an applicant was the victim of discrimination because it will be clear that an applicant’s criminal history served as the basis for a withdrawal of an offer.

Individualized Assessment

As discussed above, the 2012 EEOC enforcement guidance recommends that employers complete both a “targeted screen” and an “individualized assessment” of each applicant. The various laws in the Washington D.C. and Maryland area differ on this topic.

Both Washington D.C. and Prince George’s County require an individualized assessment. Prince George’s County expressly incorporates the term “individualized assessment” in its legislation. Washington D.C. requires a legitimate business reason for the decision not to hire and sets forth factors to support the reasonableness of the decision. In addition, Washington D.C. prohibits the use of any criminal history that did not lead to conviction.

While not mandating an individualized assessment, Montgomery County expressly references the EEOC enforcement guidance. The Baltimore ordinance is silent in this regard.

Disclosure

The ban the box acts tend to supplement the pre- and post-adverse action notices under the Fair Credit Reporting Act (FCRA). Unlike the FCRA, which does not require specificity in the notices, the ban the box notices tend to require such specificity as it relates to criminal history. In addition, unlike the FCRA, ban the box notices tend to be required whether or not the criminal history checks were performed directly by an employer or by a vendor; the FCRA notice requirement only applies to checks performed by vendors. For these reasons, as discussed above, the acts tend to shed a spotlight on the use of criminal history and likely will set the stage for future discrimination charges, using the 2012 EEOC enforcement guidance in support of the claims.

In the four jurisdictions explained here, Washington D.C., Baltimore, Montgomery County, and Prince George’s County, the different jurisdictions do not treat disclosure the same. Prince George’s and Montgomery Counties require pre- and post-adverse action notices with required content such as a copy of the criminal history, intent to rescind the offer with the basis set forth in it, and a required delay in rescission to allow an applicant to take issue with inaccurate information. Baltimore and Washington D.C. do not have such requirements. However, Washington D.C. does require production of this information in the event that unsuccessful applicants request it within 30 days after they are not selected.

Private Right of Action

It is essential to review each act to find out whether or not it provides a private right of action. None of the four jurisdictions— Washington D.C., Baltimore, Montgomery County, and Prince George’s County—provide for one, but each differs in the relief that can be awarded. As mentioned above, Baltimore has established criminal penalties, including a fine of not more than $500, or imprisonment for not more than 90 days, or both, for each offense.

Conclusion

From this simple comparison of the differences among the four jurisdictions in the Washington D.C. and Maryland metropolitan area above, the complexities facing multijurisdictional employers are obvious. For companies with multiple offices in different geographic areas, the challenge of maintaining compliance will grow increasingly complex as more local jurisdictions adopt ban the box laws. Employers and their counsel need to be cognizant of these differences and assure that human resources professionals or company business managers are educated on these challenges and are able to identify the differences as they relate to their various offices. The potential administrative nightmare does not excuse compliance failures.

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