In a previous post, "So I Hired A Felon: An Update on the Law of Negligent Hiring," we discussed the pros and cons of background checks as a means of inoculating the employer against claims of negligent hiring. One additional caveat that multistate employers must keep in mind is the rising tide of so-called "ban the box" or "fair chance" hiring reforms. A number of states and some local governments have enacted regulations that would require employers to postpone inquiry about applicants' criminal convictions.
The purpose of these laws is to de-stigmatize a criminal history that may be irrelevant to an applicant's ability to get the job done. By deferring the question, i.e. banning "the box" from applications that would require revelation of criminal history at the very beginning of the recruitment, the employer would not disqualify anyone from employment prior to affording the applicant an opportunity to establish competency based on job performance criteria. These laws do not force the employer to turn a blind eye to criminal history, but instead require the employer to wait until a later stage in the process to request the information.
State Laws that Ban the Box for Private Employers
At the present time, six states have ban the box laws that currently either apply to private employers (Hawaii, Massachusetts, Minnesota and Rhode Island) or will come into effect in the near future (Illinois, effective January 1, 2015; and New Jersey, March 1, 2015).
The state regulations are not uniform. Most important, they vary with respect to how long the employer must put off consideration of criminal background. For example, the New Jersey law that will go into effect on March 1, 2015, will prohibit the employer from inquiring about a job applicant's criminal history until after the first interview. Hawaii, on the other hand, bars the employer from obtaining the applicant's criminal history until after a conditional offer of employment has been extended.
There is no such state law that applies to private employers in North Carolina or in any of the states that border North Carolina. However, the trend is toward more ban the box legislation. Bills were considered in Georgia, South Carolina, Virginia, and North Carolina, as well as in Florida, all in the time period 2013 – 2014 that would have applied to private and public employers alike. Each one stalled prior to enactment. Nevertheless, the prospect of ban the box regulations covering the entire southeast Atlantic coast is cause for high alert. The trajectory of the movement is such that employers must keep a close watch on legislative developments in every state where they do business.
North Carolina Local Governments that Have Banned the Box
Several municipalities and county governments in North Carolina have banned the box by ordinance or policy in connection with their own hiring practices. In truth, the regulations are in the nature of formalized forbearance. These local governments have self imposed ban the box regulations on their own hiring practices, not on other employers.
Local governments in North Carolina that have adopted such regulations include Carrboro, Charlotte, Cumberland County, Durham, Durham County, and Spring Lake. Means and methods vary. For example, the Town of Carrboro banned the box by ordinance and incorporated EEOC criteria for individualized assessment published in the "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964."
The City of Durham and Durham County both adopted administrative hiring policies. Each one bans the box from employment applications and regulates the timing and circumstances for bringing criminal history to bear on individual hiring decisions.
The resistance to ban the box legislation is based on concerns over employers' obligations to maintain safe workplaces and to avoid claims for negligent hiring. Nevertheless, according to a report published by Bloomberg BNA on August 18, 2014, by Rhonda Smith, "Employer Concerns about Liability Loom as Push for Ban the Box Policies Spreads," national retailers such as Target, Walmart, and Bed Bath & Beyond no longer ask for an applicant's conviction record during the initial phase of the hiring process. Certainly, postponement by SOP is prudent for them as they ply their way through not only the laws of 50 states, but also the ordinances and policies of many, many local governments.
Employers who hire within more discrete boundaries have a lesser degree of risk to manage. More information being better than less, a criminal background check still is an advisable step to take so long as it is done with eyes wide open to applicable state law and the final decision is based on that "common sense" individualized assessment of the applicant's fitness for the position that we recommended in the previous post updating the law of negligent hiring.
This post is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this post without obtaining the advice of an attorney. If you have questions concerning this post, please contact William J. Austin, Jr. at firstname.lastname@example.org.
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