In the last several weeks both Illinois and New Jersey enacted “ban-the-box” laws prohibiting the use of check-this-box questions on employment applications inquiring about an applicant’s criminal history. In doing so, Illinois and New Jersey joined four other states with similar laws applicable to private-sector employers: Hawaii, Massachusetts, Minnesota and Rhode Island.

The new Illinois Job Opportunities for Qualified Applicants Act, which was the subject of our recent bulletin, “Illinois Bans Employment Application Questions About Criminal Convictions” (July 24, 2014), becomes effective January 1, 2015. The New Jersey Opportunity to Compete Act becomes effective on March 1, 2015.

A number of cities, including Philadelphia, San Francisco and Seattle, also have passed ban-the-box laws applicable to private-sector employers. Other states and municipalities are considering similar measures, and a number already have enacted laws applicable to governmental employers and, in some cases, government contractors.

The primary focus of these laws is on when applicants are asked about criminal convictions in the hiring process. All of the laws ban the common practice of including questions about convictions on initial employment applications, although various exceptions exist for certain types of jobs. The following chart provides a brief overview of these general timing rules by state:

Ban-the-box laws typically contain exceptions for certain types of jobs, such as law enforcement, those in regulated industries where federal or state law disqualifies individuals convicted of one or more specified offenses from holding the job, or where a fidelity bond is required and conviction of certain offenses would preclude an individual from becoming bonded. Often the exception is limited, allowing an employer only to ask about disqualifying offenses at the time of the initial application, although the rules vary by jurisdiction.

Employers with operations in jurisdictions with a ban-the-box law need to reconsider the stage in the hiring process at which criminal history questions are asked. For most jobs, questions about criminal convictions need to be removed from the initial employment application and asked later in the hiring process. How much later depends on the applicable law or laws.

Employers with operations in multiple states that want to continue using a single application form may consider adding to the application instructions that residents of certain states should not answer the criminal history questions on the application, noting that the questions will be asked of those applicants at a later time. In states with ban-the-box laws, a supplemental application should be used to elicit criminal history information at the appropriate time.

Ban-the-box laws are an additional element in the increasingly complex range of laws governing the consideration of criminal history information in the hiring process. These include:

• Industry-specific laws prohibiting employers from employing, in certain positions, individuals who have been convicted of one or more types of criminal offenses;
• Tort liability for negligent hiring that arises when an employer fails to exercise reasonable care in selecting an employee for a particular type of position, thereby unnecessarily exposing others to a heightened risk of harm, and suffering personal or financial injury due to the employee's abuse of his or her position;
• Ex-offender laws limiting the scope of criminal history inquiries and prohibiting the rejection of an applicant on the basis of a criminal conviction unless there exists a direct nexus between the crime committed and the applicant's qualifications for the job;
• EEO laws limiting the use of criminal convictions; and
• Federal and state laws governing how criminal history checks are conducted.

Vedder Price regularly counsels employers on these and related matters. Please contact Thomas G. Hancuch at +1 (312) 609 7824 or any Vedder Price attorney with whom you have worked if you have any questions about this topic.

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