Warns Ban-the-Box Legislation May Cause Confusion and Potential Risk, Urges Working with 3rd-Party Background Screening Companies

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Ban-the-box legislation continues to spread across the country and, subsequently, the legal and lawful use of criminal history reports remains critical. “Recent changes in New Jersey and Illinois with ban-the-box legislation highlight the need for companies to work with third-party background screening companies as new legislation may cause confusion and potential risk,” Adam Almeida, President and CEO of states.

Criminal Background Records

Criminal Background Records

A best practice for employers is to utilize a third-party background screening company to maintain compliancy.

The use of criminal history records as part of pre-employment background screening remains under intensified scrutiny and highly recommends all employers utilize a third-party screening company to remain compliant and avoid penalty.

Legislation known as ban-the-box laws have spread across the country. This movement is a reaction to the use of criminal history records.

Statutes that limit inquiry about criminal history during the application and hiring process are known informally as "ban-the-box" laws…many other states and municipalities impose ban-the-box restrictions on those private sector employers who do business with the state or municipality. (1)

Ban the box laws indicate that questions about criminal past cannot be asked on initial applications. Literally, the “box” one might check must be removed.

Recently, the state of New Jersey enacted ban-the-box legislation. This legislation was written to protect individuals with a criminal history as they attempt to return to mainstream employment.

From (Aug. 20, 14):

“…the Opportunity to Compete Act (the "Act"), is designed to give individuals who have "paid their debts to society" a fresh start with regard to opportunities for employment.” (2)

New ban-the-box legislation always brings a period of confusion over the correct, proper, and legal use of criminal history records. The Federal Government continues to monitor the use of criminal history reports.

“The Equal Employment Opportunity Commission (EEOC) is keeping a close eye on companies using criminal histories as part of pre-employment background screening. Companies must maintain diligence over this use, or they could face potential litigation.” States Adam Almeida.

In April 2012 the EEOC released guidance regarding the use of criminal history reports.

Private employers in all states should be mindful of the EEOC's enforcement guidance on the use of criminal history information in the hiring process. When using a third party to conduct a criminal history background check, it is critical to comply with the requirements of the Fair Credit Reporting Act. (3)

Further, Illinois has enacted ban-the-box legislation. This legislation specifically outlines “when” a criminal history can be drawn.

From the National Law Review: (Jul. 31, 14)

Under the Act, covered employers may not inquire about, consider or require disclosure of an applicant's criminal record or criminal history "until the applicant has been determined qualified for the position and notified that [he or she] has been selected for an interview." If no interview will be conducted, the employer must wait to inquire about, consider or require disclosure of an applicant's criminal record or criminal history "until after a conditional offer of employment is made to the applicant." (4)

Moreover, lawsuits may continue to spring up over the use of Criminal Background Checks.

In Washington DC a class-action suit is being pursued against the Washington Metropolitan Area Transit Authority. The action, filed on July 30, 2014 (case number has yet to be assigned), claims that the WMATA’s “criminal background screening policies for employees unfairly discriminate against black workers.” (5)

Almeida states: “Lawsuits brought by individuals and the EEOC will continue to be of concern for employers. The use of criminal background checks will continue to be under scrutiny and the legal landscape will continue to change.”

A recent survey suggests that many large companies have reacted by eliminating the question of Criminal History completely from the initial application process. This change in process can carry a cost, one that the large companies can absorb. It is the small to mid-sized companies that may suffer.

From Cleveland Business: (July 31, 14)

“The rub within a smaller organization is that there often is not that in-house counsel or legal or compliance team,” Sorensen said. “Understanding and complying with a 52-page guidance with well over 100 footnotes is no small task.” (6)

In the end, employers large, small, and in the middle should utilize a third-party background screening company in order to maintain compliancy and avoid litigation.

*** is a third-party background screening company that can assist employers in remaining complaint with EEOC guidelines and state/city ban-the-box legislation and avoid the potential of litigation over the misuse of criminal histories.


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Dan Adams
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