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Ban the Box Updates: What Employers Need to Know

What are Ban-The-Box Laws?

By now, most HR professionals and hiring managers have heard of Ban the Box and the legislation that is sweeping the nation. In simplest terms, Ban the Box means that employers cannot ask on a job application or in certain parts of the hiring process about criminal history. For example, blanket statements like, “have you ever been convicted of a crime?”

These laws aim for employers to focus on applicants’ qualifications first, without blanket no-hire policies due to past criminal activity. In most cases, employers must wait until a conditional offer of employment before asking about criminal history or conducting a background check.

On December 20, 2021, the Fair Chance Act went into place to give previous offenders a chance to find work in the United State Federal Government. The Fair Chance Act will “Ban the Box” asking about arrest and conviction history on job applicants for most Federal agencies and contractors. These questions and the background check cannot be started until the conditional job offer has been extended.

The Federal Government has this in place for it’s employees and contractors. What does this mean for Private Employers or Local Governments across the country? This is where you’ll need to dive in a little deeper!

According to the National Employment Law Project (NELP) there are currently 37 states and over 150 cities and counties have adopted similar laws.

 

What steps can you take to be compliant?

Navigating Ban the box laws can be confusing. We recommend, as a first step, consulting with your legal counsel. They’ll be able to look at your company profile, industry, and location to see what, ban the box laws apply to you.

You’ll want to take that information and then review your job descriptions and applications. You’ll also want to be sure your hiring managers only ask about the criminal industry during the correct time in the hiring process.

Whether these laws will apply to your organization will depend on several factors:

  • Company size
  • Location(s) you hire in (City, Counties, and States)
  • Are you a public or private employer?
  • What is your industry? Different regulations can apply to education, childcare, health care, law enforcement etc.

NELP has a detailed chart that is updated several times throughout the year to see whether your city, county or state has a policy or law.

While Public employers appear to be moving to Ban the Box quicker than Private employers, the lists continue to grow.

Currently, 15 states have Ban the Box in place for Private employers. These include:

 

California, Colorado, Connecticut, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

Furthermore, 22 cities and counties have Ban the Box in place for Private employers. These include:

Austin, TX; Baltimore, MD; Buffalo, NY; Chicago, IL; Columbia, MO; DeSoto, TX; District of Columbia; Kansas City, MO; Los Angeles, CA; Montgomery County, MD; New York­, NY; Philadelphia, PA; Portland, OR; Prince George’s County, MD; Rochester, NY; San Francisco, CA; Seattle, WA; Spokane, WA; St. Louis, MO; Suffolk County, NY; Waterloo, IA; and Westchester County, NY.


What’s next?

It’s important to remember that background checks are still a crucial part of the hiring process. Not even the Federal Government, which has adopted Ban the Box entirely, is removing background screening from their hiring process. The safety of your employees, customers, and your organization’s reputation is still important.

As these laws continue to sweep the country it’s always best practice to ensure that your background check process is up to date. Then when it’s time to run the background check after a conditional job offer, you can keep things moving quickly.

One Source always recommends reviewing these four areas:

  • Background Check Policy
  • Disclosure and Authorization
  • Quality of Data
  • Adverse Action

Reach out to our team if you have any questions on ways you can follow compliance laws and regulations. Or you can learn more about how to stay compliant through our blog, Blueprint to a Compliant Background Check Process.

Employers’ Crash Course: The Fair Credit Reporting Act

Background checks are nothing new, and now essentially customary in the recruiting and hiring world. Most employers run checks on all new applicants for every open position and even those up for promotions.

So while screenings are a normal part of the hiring process, keep background check regulations in mind to protect your organization and your applicants. Designed to protect the rights and information of job applicants, the Fair Credit Reporting Act (FCRA) carries immense influence.

When followed properly, the FCRA will help you make informed hiring choices while protecting your candidates. When broken, however, the FCRA gives people the power to levy lawsuits against organizations. To protect your business, make excellent hires and avoid potential legal trouble, brush up on your knowledge with this Employer’s Crash Course on Fair Credit Reporting Act.

What is the FCRA?

The FCRA outlines the responsibilities of consumer reporting agencies and the rights of those undergoing background and credit checks. It requires consumer reporting agencies to report accurate and complete information to businesses when they evaluate employment candidates. It also allows job applicants to see their reports and dispute any inaccurate information.

Under FCRA rules, background check agencies have a duty to be thorough and accurate in their reporting. Job applicants too have the right to advocate for their reputation and true identity. The burden of the FCRA isn’t just on reporting agencies, however. Employers must uphold the rights of their applicants in order to stay FCRA compliant.

How can I be compliant?

Employers must follow certain procedures when recruiting and hiring to comply with the FCRA:

  • Inform applicants you are going to screen them, then get written consent from every applicant to begin the background check process.
  • Explain what information your background reports gather and why you need it but only if an explanation does not cause confusion.
  • Be aware of your state’s screening restrictions and adhere to them. “Ban-the-box” laws have become more common in recent years.
  • If you are going to take employment action—such as rejection or termination—due to the content of a background report, you must follow the adverse action process. This includes sending pre-adverse action and adverse action letters, a copy of their report and their FCRA Rights.
  • Understand that applicants have the right to dispute their report at any time. When you send a pre-adverse action letter, you have to allow a reasonable amount of time—typically around five days—for the individual to dispute their report.

If you follow these steps, you will stay within FCRA rules and avoid negligent hiring suits.

What are the consequences of noncompliance?

The number of lawsuits brought under the FCRA reached an all-time high in 2019 and have continually increased every year since 2011. If an employer and their consumer reporting agency fail to meet FCRA standards, they put themselves at risk for an expensive lawsuit.

Because background screening is often part of standard hiring processes, organizations can repeat the same FCRA infraction multiple times. This can lead to costly class-action lawsuits from multiple parties.

Eliminate the possibility of FCRA non-compliance suits and maintain your responsibilities by partnering with a trusted background screening agency. One Source is completely FCRA compliant and here to help you navigate its regulations easily. That was your Employer’s Crash Course on Fair Credit Reporting Act. Contact One Source Client Relations to learn more about our services.