“Ban the Box” Movement Grows as Ohio Joins In

Criminal history & hiring: it’s complicated.

When asked what factors would negatively impact an organization’s hiring decision for a potential candidate, ERC’s research indicates that “the conviction of a crime directly related to the position” is number one. Even at 77%, this number is hardly surprising.

Certainly any employer feels obligated to take every precaution to both keep their staff and clients safe as well as build a strong workforce they can trust.

So, should an employer be faced with a hiring decision for an applicant whose criminal history calls into question their ability to perform their job duties appropriately, some hesitance about moving ahead with the hire is to be expected.

To avoid this potential conundrum altogether many employers have traditionally included a simple check-box on their initial job applications to help weed out those with a “record” from the pool of applicants.

However, significant research has demonstrated that this blanket approach of eliminating all applicants with any criminal record in their past probably has more negative consequences than positive, not only for the potential employee who doesn’t get the job, but also for the employer: they miss out on otherwise qualified talent, and society on the whole: unemployment is a major factor in recidivism rates. 

So, due to a combination of factors including EEOC recommendations, a patchwork of state and municipal level laws, and employer choice, the check-box has been disappearing from many job applications in recent years.

A second chance: what the research says.

Unlike checking “the box”, studies have shown that a background check that turns up past criminal history (or having the candidate volunteer the information during the interview process) after interacting with the potential employee changes the impact that this information has on the final hiring decision.

According to several studies cited by the National Employment Law Project (a strong backer of “ban the box” or “fair chance” policies), “personal contact and context” can be a game changer for both applicants and employers.

For the applicant, they have the opportunity to get in front of a potential employer and demonstrate their competencies without being eliminated from the applicant pool at the outset. On the flipside, the employer can use the direct contact with an otherwise qualified candidate to find out additional information about any past offense that is uncovered and then, very carefully, decide for themselves whether or not the information is relevant to the current position or situation at hand.

Ban the box gaining momentum: know your laws.

This so called “ban the box” movement has become a bi-partisan trend in state legislatures across the country, with Ohio officially joining in (for public employers only) as of March 23, 2016. In addition to the various county and city specific laws that are already in place here in Ohio, state law now prohibits all public employers from inquiring about an applicant’s criminal history on the initial job application.

Instead, public employers are encouraged to wait until “later in the process”, a somewhat ambiguous suggestion that is being interpreted to mean that employers should at least wait until after the first interview.

In addition, keep in mind that while Ohio’s policy only applies to public employers, if you do any hiring for other locations out of state, your application process needs to adhere to their laws as well.

When in doubt: run a background check.

Although private employers in Ohio are not required by law to delay questions about criminal history, the EEOC has long encouraged employers to adhere to a similar time frame when running background checks during the hiring process. If you are like most employers in the region, you already use a background check during the hiring process (well over 80% of employers do), so that check box isn’t really telling you very much anyhow. In short, even without “the box” as part of the initial job application, it is highly likely that a potential employer will eventually uncover any past criminal history.

In fact, if your organization already follows the EEOC guidance and uses a background check further down the line instead of a check box upfront, you are probably more than covered.

And although it varies from vendor to vendor, the norm in the background screening industry tends to favor waiting until later on in the process in adherence with the EEOC suggestion.

According to Corporate Screening’s Quality & Compliance Manager Kevin Neudecker, “We have certainly seen a trend, just as a common sense business practice, towards starting the criminal background check to later in the hiring process.

Strictly from a cost-savings perspective, many employers are now waiting to pay for the background screen until a contingent offer has been made to a candidate.”

Removing a check-box is easy: making hiring decisions based on criminal histories is not.

Even if an organization removes the “check box” on their application and relies fully on background checks to gain information about applicants’ criminal histories, making decisions about hiring when something negative does come back isn’t easy. In fact, depending on the kind of information the employer receives about an individual’s criminal history and the action (or inaction) they take based on this information, employers are arguably just as vulnerable from a legal standpoint as when a check box was in place. As Neudecker points out, unfortunately, there is no such thing as “a perfect criminal records search.” It is important to keep in mind that even once background screening results comes back, employers must act upon this information carefully.

Key questions to consider are:

1. Is the information you have been provided completely accurate?
2. Was the individual actually convicted of a crime or were the charges dropped?
3. When did the offense occur and is the offense “relevant” to the position in question?

The key here is really to use a reputable, accredited background screening provider that meets the standards set forth by NAPBS (National Association for Professional Backgrounds Screeners) for achieving “maximum possible accuracy” in their screening results. Turning down a candidate based on bad information is not only highly embarrassing, but legally dangerous.

The good news is that by understanding the processes your background screening vendor uses and the first and second questions can be largely avoided. Neudecker stresses that legal risk can be minimized by conducting a “fully transparent background screening process for the candidate.”

He explains that this “transparency” must be part of the process all the way through when the final report is received by the employer. In fact, if an employer receives a criminal background report that does indicate an individual has a criminal record, the employer is legally required to provide the applicant with the full details of the information found, as well as indicate their intent not to move forward with the hire – a “notice of adverse action”.  

This notice also provides the applicant with an opportunity to dispute any of the information in the report if they feel it is inaccurate.

As for question #2, keep in mind that getting arrested isn’t in and of itself a criminal offense. Our justice system is built on the concept of “innocent until proven guilty” and the information provided in the background screen should reflect that end result.

Question #3 is a bit more challenging to overcome and really varies based on applicable laws, organization policies, and the job duties and criminal offense combination that may be uncovered. For example, the new Ohio law allows schools to automatically reject anyone with a sexual predator or similar label to be rejected flat out from jobs at schools. But a 50 year-old applicant with an underage drinking charge and a DUI from back when they were 17, may deserve a second look.

That is, unless they have had subsequent DUIs and applied to be a school bus driver. These extreme examples illustrate why the EECO cautions employers away from crafting hiring policies that draw a “bright-line” against hiring applicants with any criminal record.

Instead, as Neudecker explains, the EEOC encourages employers to conduct an “individualized assessment” and carefully consider all relevant information about the individual’s past criminal record before making a final hiring decision.