REPORT FROM THE U.S.—Cities and states across the country have legislation requiring employers to remove the criminal history question from job applications and allow a criminal background check only after a conditional offer of employment has been made.
Los Angeles is the latest high-profile city to enact an ordinance to “ban the box” with its Fair Chance Act. Although it has the same name as New York City’s law, each city’s ordinance is specific to its own jurisdiction.
These laws exist because legislators don’t want those with a criminal history to be disadvantaged in getting a job, said Sylvia St. Clair, associate at Faegre Baker Daniels, especially if they committed a crime years ago while they were a minor or if the crime had nothing to do with the job for which they’re applying.
The Equal Employment Opportunity Council has also focused its attention on this issue, she said, which is why the movement has gained some speed.
What ‘ban the box’ means
Employers operating in a state or city that has adopted a law such as the Fair Chance Act must understand they can’t ask prospective employees about their criminal history whatsoever when they’re first applying, St. Clair said. Employers can perform a background check following a conditional job offer, she said, but they need to get permission to perform the check.
Employers can withdraw the offer based on the check because of legitimate business concerns, she said, but some versions of the law don’t allow for simply reneging on the offer. One factor consistent between the laws in Los Angeles and New York City is that employers must perform a written analysis on the pros and cons of why they would withdraw the offer.
“If they were to withdraw the offer, the applicant can request a copy of the report and written document analysis on why they decided to withdraw the offer,” St. Clair said. “They can look at the results of the background check report and see if there was a mistake.”
Los Angeles’ new law requires employers to keep their offer open for five days to allow for a rebuttal or challenge, St. Clair said, but New York City’s law isn’t as clear, which complicates matters for employers.
“Nothing is clear-cut what you have to consider,” she said. “Each employer will be different. There’s no court decision that really guides us on this right now.”
Train hiring managers to know the law and follow the requirements, such as writing the analysis, she said, and know how long the law requires employers to retain records. Employers who operate in cities and states without a specific “ban the box” law should still know if there are any regulations about discriminatory prohibitions that extend to certain background checks and their results, she said.
How hoteliers have adapted
Hersha Hospitality Management removed the criminal background box from all employment applications regardless of location almost a year ago, said Joann Weber, VP of human resources. The company now researches an applicant’s criminal history as part of a background check after making a conditional offer, she said.
Delaying the background check until after the conditional offer returns almost the same results as having it on the application anyway, she said, so the ownership, management company and hotel associates are still protected.
“It has worked really well for us,” she said. “When we are recruiting, we are focusing on hiring the best candidates possible.”
Driftwood Hospitality Management has seven locations that fall under “ban the box” laws, said Tiffany Cahill, corporate director of human resources. The company hasn’t removed the criminal background portion of the application from all its employment applications, she said, just those in states that have such a law in place.
“We just make sure that our local HR representatives stay on top of the changing laws,” Cahill said.
Each applicant requires an individual look, Weber said, and there are no hard-and-fast rules that would disqualify someone from employment. HHM considers the applicant for the role, reviewing the job type, the possible criminal background and how that might affect the person’s ability to do the job or what risks that could create for the company.
“We have employed people with some (criminal) history,” she said. “The reality is it hasn’t been a big problem for us whatsoever.”
When conducting background checks, Driftwood makes individualized assessments and considers the age of the offense and relevance to the job, Cahill said. Candidates also have the opportunity to review the results of their background checks.
Although it handles such matters on a case-by-case basis, Cahill said, the company stays consistent on what it considers acceptable or what would lead to withdrawing an offer.
“The candidate is made aware and given an opportunity to rectify if something is not correct on their background,” she said. “We do give them a copy of their rights under the FCRA.”