Removing Criminal History Inquiries – Fair Chance Hiring

Ban-the-box legislation that prohibits employers from including questions about conviction history on the employment application has become prolific over the past 20 years at the state, county, and city level. It’s not surprising that the federal government has followed suit. “Ban the box” refers to a checkbox on a job application to indicate whether an individual has a record of criminal history. Approximately 15 states have prohibited this practice for private employers, and many municipalities have adopted similar ordinances. The EEOC issued guidance 10 years ago clarifying that criminal records cannot be used to automatically exclude applicants for employment.

Cadient recently removed criminal history inquiries from its application template with the combined goals of maintaining compliance for federal contractors, shortening the application, and reducing bias in the hiring process.

Legislation Impacting Employers Subject to OFCCP

Effective December 20, 2021, the Fair Chance Act will no longer allow federal employers or contractors to inquire about conviction history in the initial stages of the employment application process prior to extending a conditional job offer. Cadient has removed criminal history questions from its baseline application script to comply with this legislation. Background checks are still permissible later in the hiring process, although employers must still consider the recentness and nature of the offense and job relevance. 

Proposed Legislation Impacting Private Sector Employers

Federal legislation has been proposed that would give private employers three years to remove criminal history questions from employment applications. The Workforce Justice Act encourages states to “ban the box” for both public and private companies, and compliance would be required for employers to be eligible for federal funding. 

Intended Outcome: Fair Chance Hiring

The purpose of this legislation is to provide individuals with prior justice involvement a better chance to be employed. It allows job applicants to be evaluated based on their job-specific qualifications and gives them an opportunity to find gainful employment so they can rebuild their lives while contributing to society and the economy. The U.S. Department of Labor recently introduced a funded program supporting workforce entry for justice-involved young adults. Employers should consider re-examining their assumptions about applicants with criminal records. Since the demographic composition of incarcerated individuals is comprised of more people of color (see report by the U.S. Bureau of Justice Statistics), we know that this also impacts the equity picture for hiring. This should be of interest to employers who are invested in broadening the diversity of their workforce and concentrating on being more inclusive.

Reducing Recidivism 

Studies show that previously incarcerated individuals tend to stay in jobs equally as long or longer than those without a record. Employers often find that individuals with a conviction are highly motivated and loyal employees. One of the best ways to reduce the rate of recidivism (likelihood to re-offend) is by employing someone who was formerly incarcerated. A Safer Foundation study in Illinois indicated that ex-offenders who received job training and kept a job for 30 days had a lower recidivism rate. Data analysis by researchers at Northwestern University found that workers with criminal records had longer tenure and were less likely to quit voluntarily. 

Overlooking Talent Amidst the Worker Shortage

Hiring justice-impacted men and women can address the current talent shortage that is plaguing many companies across the country. Financial incentives exist for employers who are open to hiring people with criminal records in the form of a federal Work Opportunity Tax Credit (WOTC)

Resources

This information should not be construed as legal advice, and Cadient recommends that employers consult with their own attorneys. For more information about employment models for justice-involved individuals, you can visit the U.S. Department of Justice website. *Additional studies referenced or used to inform this article include these resources: Bureau of Justice Statistics; U.S. DOJ Update on Prisoner Recidivism; Exploring Employer Perceptions of Hiring Ex-OffendersSupporting Reentry Employment and Success; and HR Executive’s How Companies are Putting Ex-Offenders Back to Work.

 

More compliance related articles can be found here.

**The information provided in this article is for information purposes only and does not constitute legal advice by Cadient, LLC; instead, seek legal counsel before acting or refrain from acting based on information in this article.

 

Dana Wazny

Legal Analyst, Product Compliance