Recently, the San Francisco Board of Supervisors passed amendments to the city’s 2014 Fair Chance Ordinance (FCO), which will expand upon the State’s “ban the box” initiative by further limiting an employer’s ability to obtain and use information about an applicant’s criminal history.
The amendments will go into effect on October 1, 2018 and will affect all employers with five or more employees nationwide that have at least one employee who works on average 8 or more hours per work in San Francisco. This expands on the existing ordinance which was limited to city-based employers with twenty or more employees nationwide.
Expansions to Existing Law
While the majority of the amendments are designed to bring the city’s outdated ordinance into alignment with the State’s new ban-the-box law, one amendment goes further and will prohibit employers from considering any convictions for crimes that have since been decriminalized regardless of when the conviction occurred. As an example of such decriminalized activity, the amendments specifically reference certain offenses for non-commercial use and cultivation of marijuana that were recently decriminalized under state law. Continue reading San Francisco Amends “Fair Chance Ordinance” to Expand On California’s Ban-the-Box Law
In an amendment to its 8-year old ban-the-box law, Massachusetts will further restrict employers’ ability to inquire about applicants’ criminal histories. The amendments will take effect October 13, 2018.
Massachusetts law currently prohibits employers from asking about an applicant’s criminal history on the initial application for employment (so called “ban-the-box”). Even after the initial written application, employers are prohibited from asking about the following types of criminal history:
- An arrest, detention, or disposition regarding any violation of law in which no conviction resulted;
- A first offense for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace; and
- Any conviction of a misdemeanor where the date of conviction, or the completion of any period of incarceration resulting therefrom, occurred five or more years prior to the date of the application, unless such person has been convicted of any offense within the preceding five-year period.
Amendments to the Law Continue reading Massachusetts Enlarges the “Ban” in its Ban-the-Box Law
On March 26, 2018, Michigan passed an amendment to its Local Government Labor Regulatory Limitation Act that prohibits local government bodies from adopting or enforcing any local policy, resolution, or ordinance regulating information an employer or potential employer may ask an applicant for employment verbally or in writing (so called salary history and ban-the-box laws).
This new amendment comes in response to municipalities such as Detroit and Kalamzoo passing ordinances that prohibit employers from making inquiries into applicants’ salary and criminal histories. Such local ordinances will no longer be enforceable once the law takes effect on June 24, 2018.
In spite of this pro-employer development, Michigan employers should continue to exercise caution in the information they request of job applicants. Both state and federal law place extensive limitations on the questions employers may ask applicants during the hiring process, including prohibitions on inquiries relating to age, disability, height, weight, marital status, family status, gender, ethnicity, and the list goes on.
Effective June 6, 2018, Washington employers will no longer be permitted to ask applicants about arrests or convictions, or to receive information through a criminal background check, prior to making a determination as to whether the applicant is otherwise qualified for a position. This new law is known as the Fair Chance Act (the Act).
Prohibited Activities Under the Act
Under the Act, an employer is prohibited from doing any of the following before making an initial determination that an applicant is otherwise qualified for the position:
- Asking orally or in writing about the applicant’s criminal record;
- Receive information through a criminal history background check; or
- Otherwise obtaining information about the applicant’s criminal record.
For purposes of the Act, an applicant is “otherwise qualified for the position” when the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record.
The Act also limits the content of an employer’s advertisements for job openings and hiring policies by specifically prohibiting:
- Advertising employment openings in a way that excludes people with criminal records from applying (e.g., ads that state “no felons” or “no criminal background”); and
- Maintaining any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position.
o Such prohibited policies and practices include rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position.
Activities and Employers Not Covered by the Act Continue reading Washington Joins the “Ban the Box” Bandwagon
The Spokane city council recently passed Ordinance No. C-35564 (The Fair Chance Hiring Ordinance), which goes into effect on June 14, 2018.
When this new law goes into effect, Spokane employers can no longer inquire about an applicant’s criminal history until after the applicant has either:
- participated in an in-person, telephonic, or video interview or
- received a conditional offer of employment.
In addition, under the new law, Spokane employers will be prohibited from advertising job openings in such a way that excludes individuals with arrest or conviction records. Specifically, job postings cannot include language like “no felons,” “no criminal background,” or similar language that conveys a message that people with a criminal history are discouraged from applying. This does not, however, preclude an employer from including in a job posting a requirement that an applicant undergo a criminal background check as a part of the hiring process – provided that the job posting does not state that an arrest or conviction record will automatically eliminate an applicant from consideration for that position.
This new law does not apply to the following Spokane employers:
- any employer hiring an employee who will have unsupervised access to children or a “vulnerable person;”
- any law enforcement agency;
- any position where criminal background checks are specifically permitted or required under state or federal law.
Recommendation for employers
It is recommended that all Spokane employers review the hiring practices to insure compliance with the new laws. In addition, employers need to provide training to those people involved in the hiring process about the new ban the box requirements, as these requirements impact the interview process. Finally, all Spokane employers should review their job applications and verify that any inquiries regarding criminal history are removed from the application before June 14th.
On February 1, 2018, the Kansas City (MO) city council passed the Kansas City ban-the-box ordinance, which goes into effect on June 9, 2018.
When this new law goes into effect, Kansas City employers with six or more employees can no longer inquire about an applicant’s criminal history until the applicant is in “the final selection pool of candidates from which a job will be filled” (i.e. after the applicant has been interviewed for the position and the employer has determined the individual is otherwise qualified for the position).
In addition, under the new law, an employer cannot refuse to hire (or promote) an applicant because of candidate’s criminal history, unless “the employer can demonstrate that the employment-related decision was based on all information available including consideration of the frequency, recentness and severity of a criminal record and that the record was reasonably related to the duties and responsibilities of the position.”
For purposes of this new law, the term “criminal history” includes:
- Record of a conviction, or a plea of guilty or no contest, to a violation of a federal or state criminal statute or municipal ordinance;
- Records of arrests not followed by a valid conviction;
- Convictions which have been, pursuant to law, annulled or expunged;
- Pleas of guilty without conviction;
- Convictions for which a person received a suspended impositions of sentence; and
- Misdemeanor convictions where no jail sentence can be imposed.
Recommendation for employers
It is recommended that all Kansas City employers review the hiring practices to insure compliance with the new laws. In addition, employers need to provide training to those people involved in the hiring process about the new ban the box requirements, as these requirements impact the interview process. Finally, all Kansas City employers should review their job applications and verify that any inquiries regarding criminal history are removed from the application before June 9th.
On December 20, 2017, New Jersey Governor Chris Christie signed Senate Bill S-3306 into law. This bill amends the New Jersey Opportunity to Compete Act (aka New Jersey’s “Ban-the-Box Law”) and took immediate effect.
Under the previous version of the Ban-the-Box Law, employers were prohibited from asking a job applicant about his or her criminal history during the initial employment application process. With the amendment, employers are also prohibited from inquiring about an applicant’s expunged criminal record.
In addition, the amendment also clarifies that New Jersey’s ban-the-box restrictions also extends to an employer’s online job application. In other words, employers cannot require a job applicant to disclose a criminal record or expunged criminal record on their online job applications.
The remainder of New Jersey’s “Ban-the-Box Law” is unchanged.
It is recommended that all New Jersey employers check their paper and online job applications and verify that they comply with the New Jersey “Ban-the-Box Law”.
Attention California employers … on October 12, 2017, California Governor Jerry Brown signed AB 1008 into law. This new law amends the California Fair Employment and Housing Act (FEHA) and, starting January 1, 2018, officially “bans the box” on California (in other words, it prohibits California employers from inquiring about an applicant’s criminal history early in the hiring process).
This new law applies to both public and private employers with five or more employees. Under the law, employers are prohibited from inquiring into an applicant’s conviction history until after a conditional offer of employment is made. Specifically, employers are prohibited from doing the following:
- Including any question that seeks the disclosure of an applicant’s conviction history on any application for employment — before the employer makes a conditional offer of employment to the applicant.
- Inquiring into or considering the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.
- Considering information about any of the following while conducting a conviction history background check in connection with any application for employment:
- Arrest not followed by conviction.
- Referral to or participation in a pretrial or posttrial diversion program.
- Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
In addition, if an employer intends to deny employment based on the applicant’s conviction history (after conducting a lawful, post offer criminal background check), the employer must go through the “fair chance process” before employment is denied.
Under this process, employers must take the following steps:
- Make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.While not required to be in writing, it is recommended that employers document the assessment in writing
In making the assessment, the employer must consider all of the following:
- The nature and gravity of the offense or conduct.
- The time that has passed since the offense or conduct and completion of the sentence.
- The nature of the job held or sought.
- If, following the assessment, the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing.That notification may, but is not required to, justify or explain the employer’s reasoning for making the preliminary decision.
The notification must contain all of the following elements:
- Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
- A copy of the conviction history report, if any.
- An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.
- After receipt of the notification, the applicant has at least five business days to respond to the notice before the employer may make a final decision.If, within the five business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have five additional business days to respond to the notice.
- The employer must consider information submitted by the applicant (explained above) before making a final decision.
- If an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer must notify the applicant in writing of all the following:
- The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.
- Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
- The right to file a complaint with the DFEH.
This new law does not apply to the following employers:
- Positions for which a state or local agency is required by law to conduct a conviction history background check,
- Criminal justice agencies,
- Farm labor contractors, and
- Employers required by state, federal, or local law to conduct background checks or restrict employment based on criminal history.
Take home for employers
With this new law (and the accompanying salary history ban, discussed here), it is critical that all California employers review the hiring practices to insure compliance with the new laws. In addition, employers need to provide training to those people involved in the hiring process about the new ban the box requirements, as these requirements impact the interview process. Finally, all California employers should review their job applications and verify that any inquiries regarding criminal history are removed from the application before January 1st.
NOTE: This new law does not supersede the local ordinances (i.e. in Los Angeles and San Francisco). Therefore, employers in these locations need to comply with the local ordinance requirements as well.
The California Department of Fair Employment and Housing (“DFEH”) recently finalized new regulations (“Consideration of Criminal History in Employment Decisions Regulations“) that further limit an employer’s ability to consider an individual’s criminal history when making employment-related decisions. These new regulations come into effect on July 1, 2017.
The new regulations are focused on preventing potential “adverse impact” on protected groups by employer’s overly broad use of applicants’/employees’ criminal history when making employment decisions.
Under the new regulations, employers are required to establish that the criminal history information sought is job-related and consistent with a business necessity. In doing this, an employer must be able to show that the company’s policy or practice of considering criminal history is narrowly tailored to meet the specific circumstances for which the information is sought and that the company takes the following factors into consideration when making an adverse decision based on criminal history:
- the nature and gravity of the offense or conduct;
- the time that has passed since the offense or conduct and/or completion of the sentence; and
- the nature of the job held or sought.
Most importantly, the new regulations created a rebuttable presumption that an organization’s bright-line policy or practice automatically disqualifying all applicants with certain types of past convictions are not sufficiently tailored to the specific circumstances of the job.
Impact on California Employers
Employers should reexamine their current policies and practices of using criminal histories in employment decisions and verify that their practices comply with the new regulations as well as any local ordinances (like the Los Angeles and San Francisco Ban-the-Box ordinances) before these regulations take effect. If you have any concerns about your organization’s practices, please consult with an HR Professional or competent legal counsel.
On April 27, 2017, Indiana Governor Eric Holcomb signed Indiana Senate Bill 312 into law. This new law prohibits a “political subdivision of the state” (e.g. a county, city, municipality, etc.) from passing a local “ban the box” law (i.e. a law that prohibits employers from obtaining or using criminal history information during the hiring process). In other words, under this new law, only the state of Indiana can enact a statewide “ban the box” law. This new law goes into effect on July 1, 2017
Impact of this new law
Currently only one Indiana municipality (Indianapolis/Marion County) has enacted a local “ban the box” law. This law went into effect in 2014 and applies to certain private employees that provide services to the city, as well as public employees, and requires criminal history inquiries to either be made after an applicant is selected for an interview or, if no interview will be conducted, after a conditional offer of employment is tendered. This new law preempts that local ordinance. This means that starting July 1, 2017, private employers in Indianapolis that provide services to the City of Indianapolis will no longer be required to wait until an interview is conducted or a conditional offer of employment is made to make inquiries into an applicant’s criminal history.