February 28, 2017

Ban the Box – The Fair Chance Initiative

Weekly HR - Hiring

Ban the Box – The Fair Chance Initiative

What does it mean to “ban the box”?  This term refers to the check box or question on an employment application regarding whether the candidate for employment has ever been convicted of a crime.  Ban-the-box laws and policies require employers to avoid asking about a candidate’s criminal convictions until after an interview has been conducted or when the employer extends a conditional job offer.

Why should an employer “ban the box”? The theory behind ban the box is that an employer gets a chance to form an initial impression of an applicant’s character before reacting to their criminal history. In addition to this theory, the United States Equal Employment Opportunity Commission (EEOC) has issued guidelines that urge employers to consider such factors as the crime that was committed and how it may relate to the job that the employee would be doing.  For examples, an employee that has been convicted of embezzlement would probably not be a good candidate for city treasurer.  In addition, the EEOC advises that an employer consider how much time has elapsed since the conviction.  The EEOC has also taken a very aggressive stance against employers that use conviction records against an employee without justification and when the use of such records could be viewed as discriminatory in nature under Title VII, and as such are based on race, color, religion, sex or national origin.  The easiest way to avoid any such discrimination is to “ban the box” on all applications for employment and within the interview process.

In addition to the concerns raised by the EEOC, public employers in Kentucky are also required to follow KRS 355B.020, which states that an applicant for employment cannot be disqualified solely because of a prior conviction of a crime, unless the crime is a felony or misdemeanor for which a jail sentence may be imposed, or the conviction (even when there is no jail time imposed) directly relates to the position of employment sought. This statute goes on to say that even when there is a conviction that can be considered under this statute, a public employer can determine the individual has been successfully rehabilitated.  Anytime that a public employer is considering using a criminal conviction as a reason for denial, they should involve their agency attorney in the final decision and also be certain to follow the Federal Credit Reporting Act requirements.

Legal requirements are not the only thing to be concerned about. Many citizens within our cities have some type of criminal record and many times a job opportunity can be the one thing that can turn someone’s life around.  In addition to the impact on the person that receives the job opportunity, the person’s family and the community where they reside are impacted.   

Currently, there are 25 states that have adopted ban the box laws or policies. Most recently, Commonwealth of Kentucky Governor Matt Bevin issued the “Fair Chance Employment Initiative” executive order. This executive order banned the question as to whether an applicant has been convicted of a felony from employment applications for certain jobs at the state level.  There are also various city and county ban-the-box laws around the country that apply to private and public employers.  To my knowledge, Louisville is the only city in Kentucky that has a ban-the-box ordinance in effect at the local level. The ordinance bans the Louisville Metro Council, as well as contractors and vendors doing business with Louisville Metro, from asking about an applicant's criminal background on the employment application. Metro Louisville also only performs a background check for otherwise qualified applicants and incorporates EEOC criteria into the assessment of applicants. The ordinance also states that the city prefers to do business with vendors and contractors that have adopted policies consistent with those of the city. The City of Hopkinsville has also decided to remove the question regarding criminal convictions from their employment applications.  The city will still do background checks but the checks will occur later in the hiring process.

What doesn’t “ban-the-box” do?  It doesn’t require that you hire employees with criminal convictions.  Many employers think that ban-the-box laws and policies will prevent them from doing background checks altogether. That is simply not the case.  Ban the box language still allows, and should even require, an employer do the criminal background check, but only after the interview process, or more preferably as a conditional offer of employment, and based on specific criteria related to the position of employment. 

And even with , it is also important to note that criminal backgrounds must be considered when hiring police and law enforcement telecommunicators under KRS 15.382, KRS 15.391, KRS 61.300 and KRS 15.540. These statutes state that they may not be convicted of a felony, or in regards to peace officers that they may not also be convicted of a crime involving moral turpitude.  In addition to law enforcement, criminal backgrounds must also be considered when hiring firefighters, including volunteers, as well as ambulance workers and rescue squad workers under KRS 17.167, 202 KAR 7:301, 202 KAR 7:201, 202 KAR 7:401. All of these statutes state that an applicant for these positions shall “not have been found guilty of, entered a guilty plea or Alford plea to aoffense or have completed a diversion program for aoffense.”

After Governor Bevin signed the “” executive order he said, "I want to specifically challenge each and every private employer in this state to think about doing the exact same thing."  The Kentucky League of Cities would like to add public employers to this “ban the box” challenge and to continue to encourage fair hiring practices.  If you would like more information, a sample policy and/or ordinance, contact Personnel Services Specialist, Andrea Shindlebower Main.