“Ban-the-Box” Legislation Will Impact Employment Background Checks

employment background checksHave you heard about the new employment background checks movement “ban-the-box”?  Well, “ban-the-box” simply means that employers can no longer ask about criminal records on the application. The legislation does not eliminate criminal background checks but requires the disclosure of criminal records during the interview instead of on the application.  The theory behind the law is ex-offenders are being disenfranchised early in the hiring process because of their disclosure of a criminal record on the application.  So if they were able to reveal this during the interview, they would be better able to explain the criminal record and changes they have made.

Several states have adopted such a law including Connecticut, New Mexico, Hawaii, Minnesota and Massachusetts.  Several cities such as Atlanta, Chicago, Baltimore and Philadelphia have passed similar ordinances.

Advocates of this law believe it will save organizations money because they will only be conducting background checks after a conditional offer is made.  The reality is very few organizations run a criminal background check after they receive an application.  Most employers conduct employment background checks as the final step in the hiring process after a conditional offer has been made.  So this law will not save most employers a penny.

However, “ban-the-box” legislation will potentially cost organizations a lot in the hiring process.  An application is a critical tool in the hiring process that allows employers to gather information about candidates and to use it to conduct due diligence.

Dishonesty in the hiring process is always grounds for rejecting a candidate.  So “ban-the-box” would remove an employer’s option of comparing a background screening report against an application and looking for dishonesty.

Do we really expect that “ban-the-box” will encourage candidates with a criminal record to reveal it during the interview process?  Or will candidates with a criminal history be more likely to remain mum and hope the background check does not reveal the record?

Sure, employers can start asking about criminal convictions during the interview but how do they take adverse action based on a conversation?  This is not a signed document such as an application.  Will employers have legal standing to deny employment if a candidate says they don’t have a criminal record and a background check reveals otherwise?

Why don’t we educate and encourage employers to abandon zero tolerance background screening policies?  This would do more to ensure an ex-offender has a legitimate opportunity at employment.

A company with a zero tolerance policy will still not hire a candidate with a criminal record whether they disclosed it on the application or it was found during the background check.  The recent Pepsi case should help employers realize the potential problems with zero tolerance policies.

We all make mistakes.  And we know that people with a criminal record can learn from their mistake, change and become a valuable part of our community.

This is why organizations must adopt a 3 step policy for the use of criminal records:

  1. What is the nature of the crime?
  2. When was the crime committed?
  3. How does the criminal record impact the position being sought?

This simple formula ensures that ALL candidates with a criminal record get a legitimate opportunity for employment.

However, we cannot ignore the research over the past 20 years.  Recidivism rates of ex-offenders have held steady over the past 17 years.  A BJS study found that 67.5% of prisoners released in 1994 were rearrested within 3 years.  A 2011 Pew Center study found that recidivism rates have held steady since 1994.

Now, we know that the background screening industry exploded after September 11, 2001.  In 1996, about 1 out of 2 companies conducted criminal background checks.  By 2004 this had grown to nearly 80% of companies.

So recidivism rates have held steady while background screening has exploded.  So should we believe that the proliferation in background screening has lead to the disenfranchisement of ex- offenders?  If that were true, we should expect to have seen a huge increase in recidivism after 9-11-2001.  But we didn’t.

So is the “ban-the-box” movement really about leveling the playing field for ex-offenders?  Or is it about removing personal responsibility from our actions and decisions?

You tell me.  Seriously, I want to know what you think.