Each year brings new laws, changes to existing laws, and regulations that can affect employers and their background check programs and procedures. At the start of 2020, we’re already seeing a number of new ban the box laws for some cities and states, including San Francisco, California, Waterloo, Iowa, and Grand Rapids, Michigan, as well as a statewide ban for Maryland. Regardless if your state and/or city is included in this year’s updates, employers should always stay alert and aware of what their state’s laws are to maintain compliance when conducting background checks on their applicants or employees.
What are Ban the Box Laws?
A ban the box law refers to removing the boxes on job applications that require you to check whether or not you’ve ever been convicted of a crime, incarcerated, or arrested. This can often be a leading factor as to whether or not an employee is given a chance to move forward with a job application. Since the box can deter an employer from wanting to proceed with an applicant if it’s checked, ban the box laws help ensure background information is being used appropriately, while also delaying the information of criminal history to give employees a fair chance of consideration for employment.
Who Is Affected By the New Laws?
The start of 2020 only presents a handful of new laws that will affect particular parts of the U.S., but this could change as the year progresses. Employers throughout the United States and particularly multi-state employers should continue to monitor ban the box laws as there are frequently new developments. Employers hiring in the following places should take note of the new and/or upcoming laws and ensure that their application process, along with their background check policy and procedures abide by the laws to meet compliance standards. Both employers and employees alike should thoroughly understand their roles with each of the new laws. Whether you’re applying for a job or you’re the one doing the hiring, it’s important you understand your rights when dealing with ban the box laws as they can vary widely by state and/or city.
San Francisco, California
The state of California already has its own ban the box laws, but the city of San Francisco itself enacted the Fair Chance Ordinance (FCO) in 2014, which took on some new amendments in 2018. Although this law was amended in 2018, it plays a vital role when building and implementing background checks, especially since employers in San Francisco are required to abide by both the state of California’s ban the box laws, as well as the FCO for San Francisco if their business(s) meet the criteria.
According to the Office of Labor Standards Enforcement, “the Fair Chance Ordinance (FCO) prohibits covered employers from asking about arrest or conviction records until after a conditional offer of employment.” On October 1, 2018, new amendments made by the San Francisco Board of Supervisors went into effect now applying to employers that employ five or more persons, raising violation penalty costs, and even giving any employee or applicant whose rights have been violated the rights to sue. All amendments are listed below or you can compare them to the original 2014 law found here.
According to the San Francisco Fair Chance Ordinance Amendment Summary for Employers, the following amendments are affective as of October 1, 2018:
- The law applies to employers that employ 5 or more persons.
- Employers are prohibited from inquiring about, requiring disclosure of, or basing employment decisions on a person’s conviction history until after a conditional offer of employment.
- Employers may not inquire about, require disclosure of, or base employment decisions on convictions for decriminalized behavior, including convictions for the non-commercial use and cultivation of cannabis.
- For a first violation, a penalty of no more than $500 may be assessed.
- For a second violation, a penalty of no more than $1,000 may be assessed.
- For subsequent violations, a penalty of no more than $2,000 may be assessed.
- If multiple people are impacted by the same procedural violation at the same time, the violation would be treated as one violation for each impacted person.
- Penalties must be paid to the person impacted by the violation.
- Any employee or applicant whose rights have been violated is authorized to sue.
Effective July 1, 2020, the City of Waterloo, Iowa’s Fair Chance Initiative, or ban the box ordinance, will restrict employers from inquiring about criminal record information. The ordinance states the following:
“In connection with the employment of any person, it shall be an unlawful discriminatory practice for an employer to engage in any of the following activity:
- To make any inquiry regarding, or to require any person to disclose or reveal, any convictions, arrests, or pending criminal charges during the application process, including but not limited to any interview. The application process shall begin when the applicant inquires about the employment being sought and shall end when an employer has extended a conditional offer of employment to the applicant. If the applicant voluntarily discloses any information regarding his or her criminal record at the interview, the employer may discuss the criminal record disclosed by the applicant.
- To make an adverse hiring decision based solely on the applicant’s record of arrests or pending criminal charges.
- To make an adverse hiring decision based on any criminal records which have been lawfully erased or expunged, which are the subject of an executive pardon, or which were otherwise legally nullified.
- To make an adverse hiring decision based on an applicant’s criminal record without a legitimate business reason.”
Grand Rapids, Michigan
The state of Michigan currently allows employers the rights to inquire about criminal history information, but effective since December 1, 2019, the city of Grand Rapids has enacted a Human Rights Ordinance that protects against discriminatory practices, including during an employer’s hiring process. Since ban the box laws are not allowed in the state of Michigan, this ordinance circumvents that by defining it as a discrimination law. According to the Grand Rapids Ordinance it deems it unlawful for an employer to discriminate against an applicant “with respect to hire; tenure; terms, conditions or privileges of employment; or any matter directly, or indirectly related to employment, unless such act is based on a bona fide occupational qualification.”
Employers are also not allowed to consider arrests that have not led to a conviction or refuse to hire an applicant based on their criminal record without determining whether the crime would pose a risk to the “health, safety or welfare of other employees or persons or to property.” In addition, the ordinance provides a complaint procedure for individuals to complain to the City Office of Diversity and Inclusion (ODI) of unlawful discrimination within 180 days.
The State of Maryland
On January 30, 2020, the Maryland General Assembly overrode a veto that Governor Larry Hogan made during the 2019 legislative session for the Criminal Records Screening Act or ban the box law. Effective February 29, 2020, this overturn will prohibit employers with 15 or more full time employees from inquiring about an applicant’s criminal history before the first in-person interview is conducted. Employers must also abide by the more restrictive ordinances enacted by Montgomery County, Prince George’s County, and Baltimore City if applicable. Exceptions allow employers to inquire about criminal history if:
- Another federal or state law requires or authorizes the employer to inquire about an applicant’s criminal history.
- The employer conducts services or care to minors or vulnerable adults.
In St. Louis, Missouri, the Ban the Box Ordinance restricts employers from basing their hiring decisions on the applicant’s criminal history unless that employer can prove its relevance to the job-related decision. This becomes effective January 1, 2021 and is vital for employers to bring their hiring practices up to compliance standards or risk losing their business license. In addition, employers are restricted from inquiring about an applicant’s criminal history until after it is determined they are qualified for the job, or if the applicant is part of a final pool of other applicants qualified for the job and all applicants are asked. This ordinance gives an employer time to prepare before it becomes effective in 2021.
How DISA Can Help
DISA’s background check department helps employers make informed hiring decisions by ensuring the integrity of their organization. With new laws or amendments to laws, taking place in 2020, an employer’s next steps should be to determine whether or not their background check program needs to be revised according to a new state and/or city requirements. Our line of unique service offerings and products give customers the variety they need to meet and maintain their background check requirements. Our professionals can help you build a background check custom to your industry needs with our comprehensive line of services, including:
- Automatic Renewal Notices
- FCRA Compliance Assistance
- Online Tracking & Reporting
- Extensive Provider Network
- Applicant Order Entry
- Grading & Evaluating
In addition to following background check policies and procedures in compliance with their laws, employers need to be aware of and abide by the laws set forth by the Fair Credit Reporting Act (FCRA).
- City and County of San Francisco Office of Labor Standards Enforcements
- San Francisco Fair Chance Ordinance Amendment Summary for Employers
- St. Louis, Missouri Ban the Box Ordinance
- Maryland General Assembly HB 994/SB 839
- City of Waterloo Fair Chance Initiative
- Grand Rapids, Michigan Human Rights Ordinance
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About DISA Global Solutions
Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background check, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.