Molly Kelley, Sr. HR Business Partner, and Paige Tamlyn, HR Representative, contributed to this post.
This past summer, Oregon became the most recent state to pass a “Ban the Box” law. Under this law, which takes effect January 1, 2016, it will be illegal for employers to ask a job applicant to provide criminal history information on a job application.
Here are a few FAQs regarding the law and resources to help you understand and implement this law in your workplace:
About the “Ban the Box” Law
Who does this law pertain to/protect? Who is exempt?
This law pertains to all employers unless they are exempt. Exempt employers include those required by federal, state, or local law to consider an applicant’s criminal history such as law enforcement agencies, employers in the criminal justice system, and those seeking a nonemployee volunteer.
Does this law mean that I cannot use information regarding criminal history in my hiring decisions?
The law does not expressly prohibit employers from considering convictions when making hiring decisions but essentially shifts this conversation to during or after a candidate is interviewed, typically post application process. It is important to keep in mind that the Equal Employment Opportunity Commission (EEOC) has some additional stipulations around how a candidate’s criminal convictions is used to inform a hiring decision.
When am I able to find out an applicant’s criminal history?
While you may not ask for this information on an initial application, you may request criminal history information later in the hiring process, such as at an interview, after a conditional offer of employment is made, or in another context that follows the initial interview.
How do I request an applicant’s criminal history?
The EEOC stipulates that you limit such inquiries to “convictions for which exclusion would be job related for the position in question and consistent with business necessity.”
This is obviously a bit of a grey area, so involve HR and/or an attorney to ensure your position and job applicant questions comply with this statement.
Background Checks & Best Practice
Can I still perform a criminal background check?
Yes. Nothing in legislation prohibits criminal background checks as a part of the employment application process.
What does the “Ban the Box” law stipulate about background checks?
The Ban the Box law does not discuss background checks. However, the Fair Credit Reporting Act (FCRA) does, and the EEOC outlines how this information may or may not inform a hiring decision.
What does the FCRA state?
The FCRA aims to promote accuracy, fairness and privacy of information in the process of granting credit, insurance, or employment. As an employer, you must provide a candidate with a disclosure and obtain their signed authorization prior to requesting a background check. You must also notify the candidate of any adverse action as a result of derogatory results, provide them with a copy of their rights under FCRA, a copy of the consumer report and contact information for a consumer reporting agency.
In Oregon and Washington, credit checks are only permissible if certain job-related criteria is met.
What does the EEOC stipulate about using criminal history information to inform a hiring decision?
From the EEOC website:
Federal law does not prohibit employers from asking about your criminal history. But, federal EEO laws do prohibit employers from discriminating when they use criminal history information. Using criminal history information to make employment decisions may violate Title VII of the Civil Rights Act of 1964, as amended (Title VII).
The EEOC also specifies the difference between arrest records and conviction records. Arrest records are not proof of criminal conduct, so an arrest record alone is not sufficient support for a negative employment action. An arrest may trigger further inquiry to the conduct that prompted arrest.
A conviction record is usually sufficient evidence of criminal conduct.
How do I go about determining which offenses may demonstrate unfitness for certain jobs or job duties?
Consult an expert, as these can be difficult to identify. Also look at duration of time since the conviction – best practice advises seven years for a conviction period, but this is a bit of a grey area and should not be used as a strict rule for all circumstances.
What do I do before performing a background check?
After consulting an expert to determine the applicability of results to job functions, work with HR to determine a process for communicating derogatory results and employment denial.
How should I inform an employee of adverse actions? Do I have to tell them that’s why I’m turning them down?
A candidate must be notified of any adverse actions in advance of denial and be given, a copy of their rights under FCRA, and a copy of the consumer report and contact information for the consumer reporting agency. Best practice is to allow five to seven days for the candidate to clear up any mistakes (mistaken identity, failure to expunge a criminal record, etc) prior to the employer issuing a denial of employment letter.
What are some things to keep in mind when reviewing a background check? How do I stick to what’s relevant?
Consult a lawyer and/or HR professional to create a policy, and follow it. Keep notes of consultations and research considered in crafting your policy—you will need this documentation if/when you deny employment.
If an applicant’s background check comes back with a few charges, identify those that are applicable to the job duties. Eliminate any that are dated or not relatable to the position. Look for patterns of behavior, and consider how these might affect the position you are looking to fill. Seek HR or legal consultancy.
Keep all of this information confidential. Only use this information for the purpose for which it was intended: to determine whether the individual is qualified for the job they applied for or not.