Ban the Box Conviction Records

Consider How EEOC’s Guidance on Arrest and Conviction Records in Employment Decisions May Affect Your Employment Application

In your organization, do you ask applicants about prior convictions on your employment application?

From my personal experience looking at many different web-based applications in our clients’ applicant tracking software portals, I’m guessing that you might (and I suppose since you are reading this blog post that you very likely do ask this question). If so, now’s a great time to reevaluate your employment application to ensure that its not only legally sound in general, but also mindful of the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

As the title suggests, this is the agency’s “guidance,” and in fact, not actual law or regulation by which courts are bound. However, given the EEOC’s long-standing responsibility of enforcing Title VII, it is certainly in your organization’s best interest to take a critical look at your hiring process – including the data you gather about candidates for hire at the application stage; as well as your policy on the use of any criminal record background checks as a means to screen and potentially disqualify candidates for hire. I’m not an employment attorney and I’m certainly not offering legal advice, but here are some considerations for examination to help you avoid potential pitfalls as you evaluate and plan your organization’s reaction to this guidance:

Think And Be Green While You Conduct Thorough Job Evaluation

If there are specific takeaways from the EEOC Guidance, one of them would be to stress the importance of evaluating situations on an individual, case-by-case basis before making a hiring decision, rather than applying neutral, blanket approach policies. That is, you can’t just have a policy that states that all applicants who have any prior convictions will be disqualified. Of course, there are always exceptions according to the EEOC’s Guidance…and certain industries are subject to Federal mandates requiring organizations to disqualify applicants with a specific conviction in a certain specified number of recent years (i.e. banking and applicants with financial- or fraud-related convictions); or, even some industries that must disqualify applicants who are unable to obtain a required occupational license due to the issuing agency imposing a life-long ban on applicants with convictions related to espionage, etc.

So, think Green and cite the three-pronged approach resulting from the Green v. Missouri Pacific Railroad Company case to evaluate all jobs across your organization individually to determine whether an applicant’s criminal history would have a bearing on his/her consideration for that position. These three items include: 1) the type and seriousness of the criminal conduct; 2) how much time has passed since the criminal conduct took place; and 3) the duties and responsibilities of the specific job.

Part of an effective job evaluation process is outlining the essential job requirements for a position…the non-negotiable requirements. This can be a tedious undertaking, especially if you have a large number of similar job listings that will have the same sorts of requirements. However, you can speed up the process by creating basic job templates that may be used as a foundation for creating multiple, and more specific, individual job descriptions with an easy-to-use applicant tracking software product. Not only will you be thinking Green in terms of following the judicial precedent, but you will be green and make the human resources department paperless!

“Ban the Box”? Well, maybe move the box.

So, if you are asking about prior convictions on the employment application, it is a pretty good assumption that you are also taking care to add a disclaimer that says something like this:

NOTE: Answering “Yes” to this question is not an automatic bar to employment. Factors such as how this conviction would relate to the position, age and time of occurrence, the seriousness and nature of the circumstances will be considered.

By doing so, you are informing the applicants that their honest answers to the question will not disqualify them from future consideration for employment without further investigation. Plus, sometimes background checks come back showing convictions for applicants who did not disclose a criminal record on the application. While you cannot immediately disqualify them for this potential lie, if after an investigation is completed, you determine the background check results are indeed valid and a person does have a criminal history, then you may have grounds for disqualification based on an applicant’s failure to disclose the info. But again, it might depend…

If you’ve heard of the “ban the box” movement, then you know that certain states and local governments have indeed prohibited a check-box style question on employment applications that requires applicants to disclose any criminal history. The EEOC’s guidance does not ban the box at the Federal level – employers may still choose to ask such a question. However, organizations might opt to evaluate the necessity of this question on a per-job basis rather than as a blanket question for all applicants.

If a Title VII claim is brought against your organization and the EEOC finds that you have a case of disparate impact against a protected class under Title VII, then the burden will be on you as the employer to substantiate your hiring process through documented reasons for your choices. If you have a blanket question asking all applicants about prior convictions, and you conduct background checks on all applicants prior to hire, and you DON’T have any documentation supporting how your approach is both job-related and a business necessity, then you will likely not win. Lastly, in some cases when the employer does do a thorough job of documenting its reasons, the plaintiff may still win if he/she can prove that there is a less discriminatory “alternative employment practice” that achieves the same results for the employer that the employer was not willing to accommodate, according to the EEOC’s Guidance.

As discussed previously, the job evaluation process can help you determine for which positions you may wish to:

  • consistently request information about conviction records
  • conduct background checks to determine any previous criminal records that may be cause for concern in consideration of employment (obviously heeding any specific Federal and/or state/local Government regulations for your industry at the same time–but, note that Federal preempts state/local mandates when the state/local regulation does not seem to support Title VII)
  • determine the durations of any exclusions you may impose based on conviction type

Once you have evaluated all positions and developed a game plan, you may decide to “move the box” for your conviction question, even if you do not want to completely ban it. Make sure that your applicant tracking system (ATS) allows you to use job-specific screening questions so that you may ask this question of only applicants for certain positions rather than for all job listings.

Train managers on how to handle confidential data and limit access to sensitive applicant information

Train employees on hiring processThis is just good business sense in general, but please take care to always train the employees in your organization who touch the hiring process in any way. Document your training efforts. Set expectations with them about your employment policies, including how you conduct background checks and Fair Credit Reporting Act (FCRA) requirements, as well as how they should handle any confidential data to which they have access. And by all means, limit confidential information – such as applicants’ criminal record disclosures – to the fewest number of people possible. Make sure that your technology for hiring partner can advise you on how best to set up restricted access for your managers in your hiring software.

Develop specific employment process policies and document them!

After you and your employment attorney carefully evaluate your potential risks, create a documented employment process policy, roll it out to your hiring team; and, most importantly, follow it consistently! Inconsistent application of hiring processes can be the quickest road to disparate treatment claims in which one protected class under Title VII is found to be treated differently in the selection process.

Careful consideration should especially be given to being consistent in conducting background checks on all applicants for positions in which the organization determines there is a need. Then, based on results, it is up to the employer to determine if a specific conviction may flag an applicant based on business necessity and a job-related reason; thus, resulting in a closer examination of that specific case–perhaps through “individualized assessment” including the opportunity for the applicant to respond and explain the history. Employers may consider regional recidivism statistics, for example, when documenting why one job’s duties justify an exclusion for applicants with certain job-related convictions versus another position.

Automate the screening process and make it easier to collect applicants’ background check releases through the use of email templates inviting applicants to submit the release in a secure, web-based form that accepts electronic signatures.

Be a good consumer of state/local regulations’ potential conflict with Federal mandates…for ALL locations where you have employees.

It’s hard enough to keep track of all the different categories of employment laws that affect how we do business – employee and labor relations, benefits, leaves of absence, pay practices, employment discrimination, etc. It’s even harder to not only be mindful of Federal guidance and regulations, but also more specific state or local mandates (and whether or not the Federal level preempts the local level regulation in your specific scenario).

This can be a lot to handle if your organization employs people in many different geographic areas, as well. You may need to consider how questions you ask on an application that may be permissible in one area, might cause concern in another state that has different laws imposed. Consult your trusted employment law attorney to determine which regulations may affect your organization in different geographic areas. Then, incorporate web-based technology as a part of your documented hiring process and save time and money on managing and organizing applicant and job listing data across many different locations in a legally sound way.

Has the EEOC’s Guidance on Arrest and Conviction Records in Employment Decisions caused a change in your organization’s hiring activities so far? For information about how ExactHire’s hiring technology solutions can assist your organization in being aligned with Federal guidance, please contact ExactHire.

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