More cities ban criminal questions in job applications

Barran Liebman
Oregon Law Firm

Employers Must “Think Outside the Box” When Hiring in Seattle:
New “Ban the Box” Ordinance Restricts Use of Criminal Background Checks

10 states and more than 50 municipalities and counties have some form of “ban the box” legislation, regulations, or ordinances on their books. Earlier this summer, the city of Seattle, Washington joined them, and on November 1, 2013, Seattle’s new “ban the box” ordinance goes into effect.

What does “ban the box” mean?

“Ban the box” refers to a requirement to remove the “box” from employment applications asking an applicant whether he or she has ever been convicted of a crime, thereby reducing the disparate impact which could result from basing hiring decisions solely on arrest or conviction records, which are skewed against minority candidates who often have a higher arrest and conviction rate than non-minorities.

Who is covered by Seattle’s “ban the box” ordinance?

“Employees” are defined as individuals who perform services for an employer at least fifty percent of the time at a physical location within the City of Seattle. Certain categories of employees or applicants are exempt from the ordinance, including those whose duties are law enforcement, crime prevention, security, private investigation services, or who may have contact with vulnerable individuals (children under sixteen years of age, developmentally disabled persons, or vulnerable adults) while performing job duties.

The definition of “employer” includes any person with one or more employees, and includes any agent of the employer (such as a staffing agency). All governmental entities, except for the actual City of Seattle, are excluded.

What activity does the ordinance prohibit?

The ordinance largely reflects the Equal Employment Opportunity Commission’s position on criminal background checks, which we wrote about last year. The ordinance prohibits covered employers from:
• Advertising for job openings that categorically exclude all individuals with a criminal record for any covered position;
• Inquiring about criminal history prior to completing an initial screening of applicants (once an employer has eliminated unqualified applicants and moved further into the hiring process, the employer may conduct a criminal background check);
• Taking an adverse employment action based solely on an arrest record (an employer may take an adverse employment action for the underlying behavior that led to the arrest if the employer has a legitimate business reason); or
• Taking an adverse employment action based solely on an applicant’s criminal conviction record unless the employer has a legitimate business reason.
An employer who takes an adverse action based on criminal history must provide the applicant an opportunity to respond. To that end, the employer must leave the job open for a minimum of two business days following notification to the applicant of the decision, which will allow the applicant a reasonable opportunity to respond, clarify, or explain the information.

The ordinance further defines what would qualify as a “legitimate business reason.” The employer must have a good faith belief that the criminal conviction will have a negative impact on the applicant’s or employee’s ability to perform the job, or will cause harm or injury to people, property, the business reputation, or business assets. The employer must also consider the following factors:
• The seriousness of the conviction;
• The number and types of convictions;
• The length of time that has elapsed since the conviction (excluding any time spent incarcerated);
• Any verifiable information regarding the applicant’s or employee’s rehabilitation or good conduct;
• The specific duties and responsibilities of the position; and
• The place where and manner in which the job will be performed.
What should covered employers do?

Employers covered by the ordinance should consider the following when making hiring decisions or filling job openings:
• Review job postings and policies by November 1, 2013, to ensure they do not categorically exclude everyone with a criminal record (and do not advertise that the employer does not hire anyone with a criminal record).
• Revise job applications by November 1, 2013, to eliminate any inquiries about criminal history.
• Conduct background checks only on the top candidate for the position or even after a conditional offer of employment has been made.
• Do not take any adverse employment action based solely on arrest records and, if action is taken based on a criminal conviction, articulate the legitimate business reason for the decision.
• Adjust hiring timelines in the event a job must be left open the two additional business days to allow a candidate excluded by his or her criminal background to respond.

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