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“Ban the Box” Initiatives

Nationwide, over 40 cities and counties have implemented the initiative widely referred to as “ban the box." This removes the question on the job application about an individual’s conviction history and delay the background check until later in the hiring process. The purpose of this reform is to provide applicants a better chance of being evaluated based on their qualifications. Many jurisdictions have also adopted hiring policies modeled on federal civil rights protections that require the employer to show that the criminal records restrictions are directly related to the job.

The “box" is that place on many employment applications that asks whether the applicant has been convicted of a crime or have been incarcerated. Some may even inquire about arrests. The initiative would remove those questions from the application and the initial stage of the employment process so that those who are responsible for making hiring decisions first get an opportunity to learn about the candidate’s experiences, skills and personality as they relate to the position to be filled.

It does not mean no criminal checks could be done. That is why getting a juvenile record sealed and an adult criminal case dismissed still must be a priority for many who have convicted. In California, an adult conviction is “dismissed" pursuant to Penal Code 1203.4 and if you were sentenced and served in a state prison, a certificate of rehabilitation is the remedy for you to pursue.

Once the hiring official is prepared to offer the applicant a job or they are a finalist for the open position, a criminal background check would be initiated. How would the screening process work? The applicant would be able to explain the nature of the crime, how long ago it was committed, when incarceration ended, successful rehabilitation efforts and certifications, if available. They will also be given an opportunity to review the records to determine their accuracy. The hiring official would adhere to federal Equal Opportunity Commission guidelines and not make negative decisions when the crime is unrelated to the job duties.

Minnesota was the first state to pass such a law on May 11, 2009. Statewide “Ban the Box" legislation is currently in effect in Massachusetts, California, Colorado, Connecticut, New Mexico, Hawaii and Rhode Island. Many localities have passed their own local ordinances. Among the cities and counties are Philadelphia, Pittsburgh, Boston, Atlantic City, Newark, San Francisco and Detroit. In all, at least 43 cities and/or counties have passes “Ban the Box" legislation.

Does the fact that a state or locality has a “ban the box" law mean that you can never inquire about an applicant’s criminal history? The answer is a resounding no. It only prohibits asking about an applicant’s criminal history at the initial application phase. Proponents of this law want employers to speak with applicants and discuss qualifications first. Therefore, this law will postpone the employer’s ability to inquire about criminal history either until it conducts an initial interview or extends a conditional job offer.

It is important to note that the public and the legislators are beginning to realize that employers or licensing agencies should consider the nature of the crime, rehabilitation information, and the time elapsed since the conviction. Equally important for many employers is the necessity to do their due diligence in insuring that the applicant is qualified and “safe" to hire. A criminal conviction at all cost, notwithstanding the current “ban the box" initiative, must be prevented. A good criminal defense attorney is the first safeguard to insuring no permanent criminal record should ever be disclosed.

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