All over the USA today States and other jurisdictions are discussing or enacting new laws regarding the fair, legal, and lawful use of criminal history reports in the employment screening process. Recurring headlines presents another example of a state or city enacting a new law governing the use of criminal history reports and how they are utilized as part of pre-employment background screening.
Quite frequently over the past few years new cities or States have either considered or enacted new laws governing the use of criminal background records in employment screening or tenant screening. The Equal Employment Opportunity Commission otherwise known as the EEOC released guidelines in 2012 on the lawful use of criminal background reports in the employment screening process. Additionally the so called “ban-the-box” laws have been adopted all over the country making employers remove the box on their job application form that asks the applicant if they have a criminal record.
However, the actions of the EEOC and changes in legislation regarding the ban-the-box movement have created considerable confusion with many employers over the actual fair, legal, and lawful use of criminal history reports in the employment screening process. Also the legalization of recreational marijuana in some States further complicates the hiring process in many States across the USA.
Whenever a city or state passes any form of legislation governing background screening employers should take immediate notice and review and possibly update any existing employment screening practices. The actions of the EEOC and the enforcement of ban-the-box policy could be detrimental to an employer should they fall out of compliance. It is in these instances when partnering with a professional third party employment screening agency becomes a wise decision for any employer in the country.
Just a short time ago in Washington, Idaho and Missouri legislators have either enacted new laws or are attempting to engage new laws governing the use of criminal history reports.
In the state of Washington the question of Criminal History has been put to a vote and the state House of Representatives passed a measure restricting the use of the criminal history question.
From The Chronicle; www.chronline.com (Jan. 08, 18):
A bill prohibiting the criminal history question on job applications passed the Washington state House of Representatives with a 52-46 vote.
HB 1298 was passed with votes along party lines on Feb. 7 with Republicans largely against it. chronline.com/business/proposed-bill-would-prohibit-criminal-history-question-on-job-applications/article_2ed0c4f8-103a-11e8-bb25-b37d22305500.html
Removing the question of criminal history is designed to improve the chances of employment within various protected classes. Studies suggest that to alleviate the challenges of recidivism gainful employment is an obvious and important first step.
In the state of Idaho the question of criminal history has also come up and some legislators are looking to take action.
From www.idahostatesmen.com (Feb 12, 18):
About 95 percent of people in prison will re-enter society at some point.
“These people who have or will enter their communities need gainful employment to build stability and to find success after incarceration,” Sen. Cherie Buckner-Webb, D-Boise, told the Legislature’s Senate Judiciary and Rules Committee on Monday.
For most ex-offenders, the first step to rebuilding their lives is getting a job, which means filling out employment applications. idahostatesman.com/news/politics-government/state-politics/article199752454.html
Finally, in Kansas City, Missouri, City Council took action regarding criminal history and removing the box on all applications.
From a SHRM (Society of Human Resource Management) article discussing changes to Kansas City governance (Feb 12, 18):
Under the new ordinance, employers may not inquire about an applicant’s criminal history until after it has been determined that the individual is otherwise qualified for the position and only after the applicant has been interviewed for the position. The inquiry may then be made of all applicants who are “within the final selection pool of candidates.”
The ordinance, however, is not just about employment application content or criminal record inquiries. Like recent laws in other jurisdictions, the ordinance also limits employers’ substantive hiring decisions. Paralleling the EEOC’s guidance, the ordinance requires an employer basing a hiring or promotion decision on an applicant’s criminal history to be able to demonstrate that the decision was based on “all available information” including consideration of the frequency, recentness and severity of a criminal record. shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/kansas-city-enacts-ban-the-box-ordinance.asp
Anytime there is substantive policy change or change in law all hiring managers and human resource personnel should take notice. A best practice would be to work with a professional employment screening agency in order to maintain compliance with all existing law and prepare for changing law.
Knowing that 95 percent of people in prison will at some point re-enter free society it is imperative that they get a fair chance at employment. The consequences of recidivism are harmful to society and one way to reduce this occurrence is with gainful employment. Helping ex-offenders reentering free society get a decent job is believed to be a better course of action for the country and would have the benefits of helping overall economic growth and stability while aiding in the prevention of recidivism.
To read more about why more States are passing ban-the-box legislation and the philosophy they adhere too in regards to how employers should treat applicants and when they are allowed to perform criminal background checks read recent CriminalBackgroundRecords.com press release: Criminal History Reports in the News