New Ban-the-Box Law Hits Orange County Florida

In an attempt to help level the playing field in the hiring process in the USA for the formerly incarcerated and/or those with a criminal background record laws continue to be made to ban the box on job application forms asking about candidates previous criminal history.

Ban-the-Box laws are designed to reduce potential discrimination in hiring and continue to be implemented across the country, from a statewide level down to city and county. Recently, Orange County, in Florida, enacted a new Ban-the-Box law that will remove the question regarding criminal history on any governmental employment application.

From WFTV on September 11, 2021:

On government job applications for Orange County, applicants have been asked to check a box stating, “Have you ever pleaded no contest to, or been convicted of, a first-degree misdemeanor or any felony?”

By removing this question, officials hope to improve access to employment for those with a criminal record and provide advancement for residents in underrepresented communities.

Officials said the change will not apply to public safety positions like firefighter and corrections officer. wftv.com/news/local/orange-county/orange-county-government-stop-asking-job-applicants-if-they-have-criminal-convictions/

As with most Ban-the-Box laws the goal is to improve employment opportunities and allow formerly incarcerated individuals a potential pathway back into mainstream employment.

From the Orlando Sentinel on September 10, 2021:

People applying for a job with the Orange County government will no longer have to disclose prior criminal convictions at the beginning of the application process, a move officials and advocates hope will improve access to employment for those with a criminal record… orlandosentinel.com/news/breaking-news/os-ne-orange-county-ban-box-desmond-meade-20210910-7bi5yfj4iza27cdnan4e2adxte-story.html

Hiring managers and HR Departments should take immediate note of changes in laws governing the use of public records as part of a pre-employment background screening can occur frequently.

At this point in time it is critical that HR departments stay abreast of ban-the-box laws as they could significantly impact hiring practices.

To read more about this subject read recent press release: County Level Ban-the-Box Continues the Trend of Managing Use of Criminal Records in Background Screening

State of Maine Joins Ban-the-Box Movement with New Legislation

Maine becomes the latest state to enact Ban-the-Box legislation laws which are designed to reduce discrimination in the hiring process as well as designate when the question of a criminal history can be asked, or if it can be asked at all.

Ban-the-Box laws continue to get enacted across the country and with every new law Hiring Managers and HR Departments should be reminded to ensure all hiring policies are current by working with a well-qualified third-party pre-employment background screening agency.

Advocates of Maine’s new Ban-the-Box law state the law will protect vulnerable populations from potential discrimination.

From the Maine Center for Economic Policy, on September 1, 2021:

Maine joined 14 other states in enacting protections for job applicants with a history of arrest or incarceration (LD 1167). These “ban the box” laws prohibit employers from asking about criminal history on a job application … The practice of running criminal background checks on job applications has been shown to disproportionately impact people of color, who are more likely to be unfairly arrested than white Mainers. jdsupra.com/legalnews/maine-s-new-ban-the-box-law-when-can-6722814/

Maine’s Ban-the-Box legislation goes into effect on October 18, 2021. The new law will significantly impact hiring of new employees and how background screening is managed.

From JDSupra.com on September 3, 2021:

The new law prohibits an employer from requesting “criminal history record information” from an applicant on the employer’s initial employment application. Criminal history record information is defined broadly and includes, among other things, arrests, detentions, indictments, sentencing, involuntary commitments, and criminal dispositions.

An employer may, however, inquire about an applicant’s criminal history record information, including through background checks, during an interview, or after the employer has determined that the applicant is otherwise qualified for the job. mecep.org/blog/progress-for-maine-workers-in-the-first-part-of-the-130th-legislature/

In the end employers should take great care in hiring new employees and in the vetting process as a whole. Being aware of and understanding the laws that govern public records, such as Criminal History Reports, is paramount.

To read more about this subject read recent press release: Ban-the-Box Train Keeps Rollin and Will Keep Rollin

Ban-the-Box Laws Continue in USA and That Affects Background Screening

Over two decades of Ban-the-Box legislation being enacted across the USA has caused significant changes to the employment screening and overall hiring practices within those localities and hiring managers should take notice. These agents’ particularly human resource departments should take this opportunity to work with a professional pre-employment background screening agency, in order to remain complaint with a variety of complex laws governing the use of public records, especially criminal background records.

As Ban-the-Box laws are enacted across the United States, the federal government has finally enacted their own law, which becomes effective at the end of 2021.

From JDSupra.com on July 23, 2021:

The Fair Chance to Compete for Jobs Act of 2019 is set to become federal law effective December 2021. The law prohibits many federal agencies and federal contractors from requesting arrest and conviction information from a job applicant—at least until after extending a conditional offer of employment. Although this will be the first federal “ban-the-box” legislation to become law, 35 states, Washington, D.C., and numerous cities have already adopted similar requirements for state and local agencies and contractors. jdsupra.com/legalnews/ban-the-box-laws-continue-to-proliferate-1627995/

Ban-the-Box laws are designed to create a more equal playing field across all populations and decrease discrimination due to a criminal history question box on an employment application.

Across the country there are a variety of laws that can be subtly different from one another. HR Departments and Hiring Managers should continue to take note every time a new law is enacted, to ensure their hiring and vetting policies and practices are legal and lawful.

However, many of these laws, both federal and local, only apply to governmental agencies. The federal government continues to look at private industry.

Again, from JDSupra.com, from July 23, 2021:

Notably, House Democrats are already looking to follow suit with H.R. 1598 (the “Workforce Justice Act of 2021”). If passed, the federal government would withhold funds provided under the Edward Byrne Memorial Justice Assistance Grant (JAG) program from any state that refuses to extend ban-the-box legislation to private employers. More specifically, the Act would require states to prohibit private employers from (1) requiring a job applicant to disclose a criminal record, (2) asking about the criminal record of a job applicant prior to making a conditional offer of employment, and (3) conducting a criminal background check prior to making a conditional offer of employment. That legislation is currently being reviewed by the House subcommittee on Crime, Terrorism, and Homeland Security. ibid

One aspect has become crystal clear; that businesses and organizations should remain diligent with changes in law governing the use of public records, such as criminal history records, as a part of pre-employment background screening. As always, working with a professional pre-employment background screening agency remains the safest approach.

To read more about this subject read recent press release: Ban-the-Box Laws Continue to Appear Across the Country, Further Affecting Background Screening; Opines CriminalBackgroundRecords.com

Michigan to Remove Date of Birth details from Public Records

Pre-Employment Screening hits a hurdle with the removal of personally identifiable information like individuals dates of birth from public records that will make it extremely difficult to match criminal background records with the person who committed the offense.

Redaction of personal identifiers will create challenges for hiring managers and HR departments and suggests a best practice remains to work with a well-qualified third-party pre-employment background screening agency to remain up-to-date with changes in background screening and applicant vetting.

Pulling public records from County Courthouses has received a blow as more states are limiting the use of identifiers, such as DOB or CDL numbers, on public records, and this action will have serious implications for vetting applicants.

Recently, in Michigan, the use of identifiers has become limited by law.

From PBSA.org, a leading industry group for Background Screening, in June 2021 (No specific date provided):

Effective July 1, 2021 Michigan courts will redact date of birth (DOB) from their public records available through courthouses. This change is the result of Michigan’s ADM File No. 2017-28 and 2020-26 adopted by the Supreme Court that the State Court Administrative Office has interpreted to require clerks not to use or provide DOB in searches. This means that only one identifier (Name) will be available on court records. This change will impact all criminal background checks in Michigan until further notice. thepbsa.org/government-relations/michigan-dob-redaction-information/

Additional courts across the country are beginning to follow the same process highlighted by Michigan’s action, and could create significant challenges to those vetting employment applications.

In California a court challenge ruled that the use of identifiers should be limited.

From NBCPalmSprings.com on June 28, 2021:

All of Us or None argued that permitting the use of dates of birth and driver license numbers to initiate a search was a violation of Rule 2.507 and sections of the Government Code. nbcpalmsprings.com/2021/06/28/fees-now-in-effect-to-view-superior-court-criminal-records-online/

Michigan is not the only state to go in this direction. Other states, such as California, have varying degrees of redaction of identifiers. While public record searches will continue, the use of a single identifier (first, middle, last name) will push HR departments and hiring managers to work very closely with a third-party pre-employment background screening agency in order to properly match identities of candidates to public records.

Additionally the Professional Background Screening Association or PBSA is currently lobbying the State of Michigan to not go through with their plans as it would be a disaster for the court record retrieval process and could prevent many employers and landlords from finding out about their applicant’s criminal past that could cause tremendous risks to the safety of their employees and tenants.

To read more about this subject read recent press release found at: DOB and Other Identifiers Removed from Public Records, Potentially Slowing the Background Screening Process; Opines CriminalBackgroundRecords.com

Ban-the-Box Takes Root on College Applications

Ban-the-Box legislation has been sweeping across the country removing the box that asks if an employment applicant has a criminal past. The hope of the movement is to give job applicants with a criminal background record a better chance of getting employed by not having to admit they have a criminal record right away at the first phase of the hiring process.

Most recently some cities and states have looked into the removal of the box in rental housing applications. Now, the movement to ban-the-box has taken root in colleges and universities across the country and several states have recently taken steps to ban-the-box.

In Virginia, Gov. Northam signed legislation removing the “box” on state college and university applications.

From www.progress-index.com on June 3, 2021:

… were happy to be in attendance to see Gov. Ralph S. Northam ceremoniously sign legislation that removes that box from most Virginia-based colleges and universities. The legislation, which takes effect Jan. 1., 2022, has a special carve-out for Virginia Military Institute and for post-graduate law school programs.

The legislation does not completely take away criminal background checks, but it does push them further down the selection and acceptance process. That improves applicants’ chances of making it past the first round and provides an avenue for them to explain in detail just what that history included. progress-index.com/story/news/2021/06/03/virginia-governor-removes-criminal-record-checkbox-college-apps/7527473002/

At Florida Atlantic University staff are encouraging administration to ban-the-box. However, the efforts do create a perception of conflict, safety versus admission with criminal history.

From Yahoo.com on May 28, 2021:

A group of faculty members at Florida Atlantic University want the university to stop asking students to disclose their criminal histories on their applications — part of a growing movement to urge large schools and employers to rethink their application process.

The initiative proposed for FAU pits two interests against each other: the desire to give applicants with criminal pasts a chance at higher education against concerns surrounding public safety on school campuses. news.yahoo.com/fau-ban-box-quit-asking-110000169.html

The university continues to review its position.

As Colleges, Universities and State Governments look deeper into banning the criminal history box on their applications the discussion on how to proceed and what will be best for each entity going forward will remain a hotly debated topic.

To read more about this subject read recent press release: Ban-the-Box on College Applications Remain in the News

Hiring Managers Should Take Note to Changes in Ban-the-Box Laws

It is clear that at this point in time ban-the-box laws are not going away as new related laws get passed and existing laws get amended. Hiring managers and employers need to review new and existing ban-the-box laws that fall within their jurisdiction and such laws certainly will affect employment screening policies going forward.

Pennsylvania recently updated Ban the Box laws, further restricting employers use of public records, and represents just one of many challenges employers face in maintaining current and compliant hiring policies. Working with a well-qualified third-party pre-employment background agency remains a best practice in staying current with rapidly changing Ban the Box legislation.

Changes to current employment and Ban the Box laws in Pennsylvania highlight how these laws can evolve and potentially create confusion for hiring managers and HR Departments.

From the National Law Review on April 9, 2021:

Changes to Philadelphia law will further restrict employers’ use and reliance on applicant, current employee, and independent contractor background information and affect the employee application and employee management process. natlawreview.com/article/philadelphia-enacts-key-changes-to-ban-box-credit-screening-ordinances

One of the more interesting changes to the law relates to current employees.

Again, from the National Law Review on April 9, 2021:

Bill No. 200479 amends the FCRSS to make it applicable not only to the application or transfer process, but to the use of any current employee criminal histories. The law’s restrictions and procedural requirements now apply also to current employees, as well as applicants in Philadelphia. Moreover, independent contractors and gig workers are afforded the same protections as full-time or part-time employees or applicants. ibid.

Even though some Ban the Box laws can be challenged based on legality and/or jurisdiction it is important to note their legitimacy and for employers it is important to abide by these laws when it comes to the use of criminal background checks in the hiring process. When and where an employer or hiring manager can perform a criminal background record check in the employment screening process must be understood and partnering with a professional employment screening company is always a best practice.

To read more about this subject read recent press release found at: Change to Ban the Box Laws Can Lead to Confusion for Hiring Managers and HR Departments

Hiring Managers Should Take Note to Changes in Ban-the-Box Laws

It is clear that at this point in time ban-the-box laws are not going away as new related laws get passed and existing laws get amended. Hiring managers and employers need to review new and existing ban-the-box laws that fall within their jurisdiction and such laws certainly will affect employment screening policies going forward.

Pennsylvania recently updated Ban the Box laws, further restricting employers use of public records, and represents just one of many challenges employers face in maintaining current and compliant hiring policies. Working with a well-qualified third-party pre-employment background agency remains a best practice in staying current with rapidly changing Ban the Box legislation.

Changes to current employment and Ban the Box laws in Pennsylvania highlight how these laws can evolve and potentially create confusion for hiring managers and HR Departments.

From the National Law Review on April 9, 2021:

Changes to Philadelphia law will further restrict employers’ use and reliance on applicant, current employee, and independent contractor background information and affect the employee application and employee management process. natlawreview.com/article/philadelphia-enacts-key-changes-to-ban-box-credit-screening-ordinances

One of the more interesting changes to the law relates to current employees.

Again, from the National Law Review on April 9, 2021:

Bill No. 200479 amends the FCRSS to make it applicable not only to the application or transfer process, but to the use of any current employee criminal histories. The law’s restrictions and procedural requirements now apply also to current employees, as well as applicants in Philadelphia. Moreover, independent contractors and gig workers are afforded the same protections as full-time or part-time employees or applicants. ibid.

Even though some Ban the Box laws can be challenged based on legality and/or jurisdiction it is important to note their legitimacy and for employers it is important to abide by these laws when it comes to the use of criminal background checks in the hiring process. When and where an employer or hiring manager can perform a criminal background record check in the employment screening process must be understood and partnering with a professional employment screening company is always a best practice.

To read more about this subject read recent press release found at: Change to Ban the Box Laws Can Lead to Confusion for Hiring Managers and HR Departments

College Applications – The Next Frontier for Ban-the-Box Laws

Student leaders are beginning to take on the question of Ban-the-Box for College and University applications. Banning the box essentially eliminates the question of criminal history and potentially levels the playing field for those with a criminal background record when it comes to being accepted into an institution of higher learning.

From UPressOnline.com on April 7, 2021:

Anyone who has filled out a university application may recall having to answer a question about their criminal history. Failure to answer these types of questions can delay application processing and a prospective student’s answer can result in a disciplinary hold or rejection.

Ban the Box at FAU is an organization working to remove questions regarding criminal history from FAU’s and other university and college admission applications. upressonline.com/2021/04/ban-the-box-town-hall-discusses-removing-criminal-history-application-questions/

At Yale University in Connecticut, efforts are underway to ban-the-box on Yale’s admission applications but no longer on the Common Application widely used in higher education.

From Yale Daily News on April 1, 2021:

During the 2019-2020 admissions cycle, the Common Application permanently removed its criminal history question. However, Yale still includes a criminal history question in the Yale-specific section of the Common Application. The question asks applicants, “Have you ever been convicted of, or pled guilty or no contest to, a misdemeanor or felony, or are there any criminal charges pending against you?” yaledailynews.com/blog/2021/04/01/justice-impact-movement-ycc-call-on-yale-to-ban-the-box-in-admissions/

Ban-the-Box laws across the country affecting employment applications have been occurring for many years now but removing the box on higher education institutes like Colleges and Universities is a much newer phenomenon. The mentality that criminal background records can become a huge obstacle for people to get jobs also exists for the same kind of people to get accepted to a College or University. As public perception in the USA has been changing more and more people understand that getting these kind of people employed or enrolled at a place of higher learning is better for the community at large and also helps with avoiding recidivism.

To read more about this subject read recent press release: Ban the Box Goes to College: The Next Evolution in Eliminating the Question of Criminal History

Growing Optimism for a National Ban-the-Box Law

Recently Rep. Maxine Waters (D-CA) and Rep. David Trone (D-MD) presented the Workforce Justice Act, an act that would mandate the removal of the criminal history question on employment applications. The time may be now for a successful passage of the Workforce Justice Act, and hiring managers should take immediate note, ensure their hiring policies are current, and work with a well-qualified third-party pre-employment background screening agency to remain compliant with laws governing hiring.

Ban-the-Box legislation has grown since the first bill emerged from Hawaii over 20 years ago. During the corresponding years many states and local municipalities have enacted similar laws requiring an elimination of the criminal past question on employment applications.

From HRDive.com on March 3, 2021:

There’s a growing push in the U.S. to remove the barriers standing in the way of job seekers with criminal histories.

States and cities have adopted ban-the-box legislation, which prohibits employers from requiring applicants to indicate whether they have a criminal history record. hrdive.com/news/2nd-cir-wont-reconsider-whether-criminal-history-hiring-ban-disparately-i/596058/

In early March of this year Rep. Maxine Waters (D-CA) and David Trone (D-MD) introduced the Work Justice Act into Congress.

From a press release from the Office of David Trone, on March 3, 2021:

Ahead of the House of Representatives’ historic vote on the George Floyd Justice in Policing Act, Congressman David Trone (MD-06) and Congresswoman Maxine Waters (CA-43) introduced the Workforce Justice Act, which would encourage states to ‘ban the box’ on employment applications nationwide and give justice-impacted individuals a greater chance of gaining employment. trone.house.gov/media/press-releases/reps-trone-waters-introduce-historic-legislation-ban-box-employment

Changing how the question of criminal history and related criminal history reports will be a significant move. For companies large and small this may cause considerable concern. However, at some point after the initial employment application is filled out employers can pull criminal history reports on potential hires depending on how the ban-the-box legislation works in their jurisdiction, sometimes only after an initial offer is made can a criminal report be pulled.

To read more about this subject read recent press release: Growing Push for National Ban-the-Box Law Should Alert Hiring Managers

New York City Updates Ban-the-Box Legislation

After about six years from passing their first ban-the-box law, NYC has updated its Fair Chance Act and the changes will take affect this summer.

When Ban-the-Box laws came into existence 20 plus years ago they were generally enacted at a statewide level. Over time cities took up the call for legislation regarding the use of criminal history reports, specific to their use during the pre-employment screening process and as related to the question of a criminal history on employment applications.

Larger cities enacted ban-the-box laws and, over time, continued to update and expand the scope of this type of legislation. One example of this evolution with a ban-the-box law is New York City.

The city’s initial law came into existence in 2015 but recently took action to improve the law, and these changes take effect in July 2021.

From the National Law Review’s website on January 29, 2021:

On January 10, 2021, amendments to the New York City Fair Chance Act (“FCA”) – New York City’s “ban-the-box” law – were passed into law. The amended FCA will significantly expand employment protections for applicants and employees with criminal background records, including convictions, charges, and arrests. natlawreview.com/article/new-york-city-expands-its-ban-box-law

One of the key areas on the newly expanded law regards the question of “non-pending arrests” or “criminal accusations.”

From JDSupra.com on January 12, 2021:

It is unlawful to either make any inquiry about non-pending arrests or criminal accusations, adjournments in contemplation of dismissal, youthful offender adjudications or sealed offenses, when such an inquiry would violate the New York State Human Rights Law. Currently, the FCA prohibits denying employment on these bases, but does not prohibit inquiries about such information. jdsupra.com/legalnews/2021-employment-law-spotlight-new-york-2307634/

Every jurisdiction can have a law that is unique and finely nuanced. Without a federal law governing the use of criminal history confusion can be created with different laws and cause considerable concern for hiring managers and HR Departments. At this point in time it is very important to understand all the Local, State and Federal laws concerning the use of public records such as criminal records in the hiring process and when and where such records can be utilized.

To read more about this subject read the recent CBR press release: NYC Example of Ban-the-Box Law Evolution at a Municipal Level