More reason to think twice about criminal background checks on job applicants: A new bill that’s been introduced in the House would make it illegal to ask candidates whether they’ve ever been convicted of a crime.
The Ban the Box Act (H.R. 6220), introduced by Rep. Hansen Clarke (D-MI), would prohibit employers from asking such questions of “an applicant for employment or otherwise seek information about such an applicant (including through the use of any form or application) relating to whether such applicant has ever been convicted of a criminal offense.”
Under the proposal, such an inquiry would be allowed after a “conditional offer for employment has been extended to an applicant” or in cases where offering the candidate the job might “involve an unreasonable risk to the safety of specific individuals or to the general public.”
EEOC’s strict guidelines
As you’ll remember, the Equal Employment Opportunity Commission recently issued its enforcement guidance concerning the use of criminal background checks.
The essence of the guidance: Employers have to make hiring decisions on applicants with criminal histories using three criteria. They are:
- The nature and gravity of the offense or conduct
- The time that has passed since the offense or conduct and/or completion of the sentence, and
- The nature of the specific position.
The new wrinkle, however, is the agency’s “recommendation” that employers go through an extensive “individual assessment” on each candidate.
And that could mean a lot of headaches for HR. Here’s a list of the things EEOC says you should consider:
- The facts or circumstances surrounding the offense or conduct
- The number of offenses for which the individual was convicted
- Age at the time of conviction, or release from prison
- Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct
- The length and consistency of employment history before and after the offense or conduct
- Rehabilitation efforts (such as education or training)
- Employment or character references and any other information regarding fitness for the particular position, and
- Whether the individual is bonded under a federal, state, or local bonding program.
It’s doubtful the Ban the Box Act will go anywhere this year. But given the new EEOC rules, you still have plenty of reason to tread carefully as far as criminal record checks are concerned.
