Tag Archives: Ban the Box

Job Posting and Ban the Box

Contributed by Mike Wong, February 18, 2019

job application on a laptop screen

Over 33 states and 150 cities, counties and municipalities have enacted Ban-the Box laws that prohibit employers from asking about an applicant’s criminal record or criminal history prior to the applicant being selected for an interview or, if there is no interview, prior to a conditional offer of employment.

But did you know that Ban-the-Box laws can also impact your job posting or advertisement?

Yes, these laws can, and much like the Fair Credit Reporting Act (FCRA) and Americans with Disabilities Act (ADA), Ban the Box laws are being used by “professional plaintiffs” to go after employers for technical violations.

For example, New Jersey, New York City, Washington and Wisconsin’s Ban the Box laws specifically prohibit employers from asking applicants about their criminal history before making a job offer – including in job postings.  In those jurisdictions, having job postings or advertisements that state: “background check is required,” “clean criminal history,” “no felons,” “no criminal background,” or any other language that expresses any limitation in the hiring of an individual, directly or indirectly, based on his or her arrest or criminal background violate the law.

While the majority of Ban the Box laws do not expressly include prohibitions of such language in job postings and advertisements, employers now have potential exposure if they decide to include language of that kind. For example, an applicant could argue that while a state or local law does not expressly prohibit using language regarding criminal history in a job positing or advertisement, by doing so the employer is, in essence, unlawfully seeking criminal history information from job candidates. Additionally, if the state or local law prohibits discrimination against individuals with arrest records, the same legal argument the EEOC uses for Title VII discrimination claims based on arrests or convictions could be used – i.e., that the use of arrest records has a disparate impact on individuals of certain protected classes by eliminating, for example, more African American or Hispanic applicants as compared to applicants outside those groups.

Thus, while Ban the Box seems pretty straightforward, it is important to understand the details of each state and local law that may apply to your business. Moreover, it is important to review you job postings, advertisements and recruiting materials to make sure that they are up to date and not creating potential liability for you.

Chicago Police to Pay $3.1 Million to Settle Hiring Bias Claim Brought by Department of Justice Based on Applicant Background Check Requirements

Contributed by Jamie Kauther

 Unless you’ve been avoiding the national news the last several months, you already know the Chicago Police Department (CPD) has been in the cross hairs of the Department of Justice for alleged civil rights violations. Just this past Friday, February 5, 2016, the Department made a new civil rights claim against the CPD based on employment discrimination. The court complaint filed on Friday in the Northern District of Illinois, entitled alleges discrimination based on national origin. It claims the CPD discriminated against Chicago Police Carapplicants not born in the United States through its residency requirement. Specifically, the Complaint alleged that a total of 47 applicants, who were otherwise qualified, were denied employment by CPD because they hadn’t lived in the United States for the required residency period. It claims that all 47 applicants were entitled to back pay, interest on lost wages and compensatory damages and requested that the city change its hiring policies removing the residency requirement as a “pass/fail” screening device.

The original residency requirement mandated that all applicants for the police force be United States residents for at least 10 continuous years prior to their application date. In 2011, the CPD revised the residency requirement to 5 years. CPD defended the continuous residency requirement claiming it was needed for thorough background checks of the potential police officers. However, the merits of those arguments, and whether or not the application process will change, won’t be addressed by the court, because as soon as the Complaint was filed attorneys for the Department notified the presiding Judge that a settlement had been reached with CPD for $3.1 million. The Chicago City Council is expected to vote on the settlement this coming week.

Although this news may seem government oriented, employers that typically utilize background checks pursuant to internal guidelines should be mindful to avoid or limit inquiries into criminal histories at the outset of the hiring process, particularly those in states that have implemented “ban the box” legislation. To the extent that such policies are in place, employers should be cognizant that such policies when implemented, no matter the justification, could lead to liability if it shows a disparate impact. Employers must look beyond what is written and what the actual impacts of their policies are to avoid potential costly exposure.

How Can Employers Reconcile the Federal Motor Carrier Safety Regulations with Growing “Ban the Box” Laws?

Contributed by Jeffrey Risch and Sara Zorich

The Federal Motor Carrier Safety Administration Regulations (FMCSR) set forth rules and regulations for employment applications involving applicants applying to drive commercial motor vehicles. (See 49 C.F.R. § 391.21).  Section 391.21 has been adopted in most states (for example, Illinois law recognizes Section 391.21 pursuant to Title 92 of the Illinois Administrative Code).

FMCSR specifically requires applicants completing a commercial driver application to (1) list all violations of motor vehicle laws or ordinances (other than parking) of which the applicant was convicted for in the prior 3 years and (2) provide a statement setting forth the details and facts of any denial, revocation or suspension of their driver’s license.

In recent years, a growing number of states, in addition to local municipalities, are passing “Ban the Box” laws that prohibit employers from inquiring into criminal convictions on their written applications for employment or at any time prior to a conditional job offer.  In fact, as of January 1, 2015, the Illinois Job Opportunities for Qualified Applicants Act (a.k.a. “Ban the Box”) bars private employers with 15 or more employees from asking about, requiring disclosure of, or considering an applicant’s criminal history, until the employer has notified the applicant of his or her selection for an interview or until a conditional job offer has been made.

So how are employers supposed to reconcile Section 391.21 requirements with the limitations of inquiry into criminal conduct under local or state “Ban the Box” laws?  Employers who have job positions governed by Section 391.21 should recognize and rely on any expressed exceptions under such local or state laws.  For instance, Illinois’ “Ban the Box” law permits employers to ask about convictions on an application if “employers are required to exclude applicants with certain criminal convictions from employment due to federal or State law.” (820 ILCS 75/15(b)(1)).  However, employers must be very careful to only request information on the initial application that is specifically required under Section 391.21.

An additional hurdle for employers is that some states have anti-discrimination laws that limit otherwise permissible inquiries.  As an example, the Illinois Human Rights Act (IHRA) prohibits private employers with 15 or more employees from asking applicants about any sealed or expunged criminal record of conviction.  However, once again there is an exception to the IHRA when the request is “otherwise authorized by law.”  Since 49 C.F.R. 391.21 requires an employer to inquire about ALL violations of motor vehicle laws of which the employee was convicted in the past three years on an application, this is an exception to the IHRA and no qualifying language regarding sealed or expunged records is required.  But again, any inquiry into other types of convictions not covered by FMCSR (after selection for interview or conditional offer is made) must have the qualifying language required under the IHRA.

Bottom Line: Employers cannot follow a one size fits all approach with employment applications.  Trucking companies throughout the United States, and particularly in the Midwest, must review their applications for drivers of commercial vehicles to ensure they are complying with the requirements under federal, state and local laws.

Small Employers in Chicago Must Ban the Box, Too

Contributed by Steven Jados

Effective January 1, 2015, employers that have fewer than 15 employees and either maintain a business facility within Chicago’s city limits or are subject to any of the license requirements of Title 4 of the Chicago Municipal Code (or both), are prohibited from pre-screening applicants for employment based on criminal history.  Essentially, Chicago has taken the Illinois Job Opportunities for Qualified Applicants Act (otherwise known as the Illinois Ban-the-Box law), and applied it to the employers doing business in Chicago who are too small to be covered by the statewide law.

Chicago’s Ban-the-Box ordinance states:

Employers that are not subject to the Illinois Job Opportunities for Qualified Applicants Act, including the City of Chicago and its sister agencies, may not inquire about or into, consider, or require disclosure of an applicant’s criminal record or criminal history until after the applicant has been determined qualified for the relevant position and notified that he has been selected for an interview, or, if there is no interview, until after a conditional offer of employment is extended to the applicant.

The same three carve-outs in the Illinois Act are also present in the Chicago ordinance: (1) federal and state law exclusions based on certain crimes; (2) standard fidelity bond-related disqualifications; and (3) positions subject to the licensure requirements of the Emergency Medical Services Systems Act.  Chicago’s Ban-the-Box also does not prevent an employer from providing written notice of specific offenses that will disqualify an applicant from employment.

Additionally, the Chicago ordinance prohibits the city and its sister agencies, which include the Chicago Public Schools and Chicago Park District, among others, from automatically disqualifying an applicant based on criminal convictions discovered after the applicant is interviewed or given a conditional job offer.  The ordinance also provides nine factors that the city and its agencies are to consider when making an employment decision based on an applicant’s criminal past.

But perhaps the ordinance’s most significant provision is that any employer with a facility in Chicago or subject to the city’s Title 4 license requirements that uses an applicant’s criminal past as a complete or partial basis for rejecting the applicant must communicate that fact to the applicant when telling him or her of the rejection.  In light of the EEOC’s current enforcement strategy for employment decisions based on criminal records, an employer’s admission that it based an employment decision on an applicant’s criminal record could expose the employer to a substantial risk of legal liability.

Complaints of alleged violations of Chicago’s Ban-the-Box ordinance can be made to the Chicago Commission on Human Relations, and the penalties for violations may include fines of $100 to $1,000, and “license discipline” for city licensees.

Employment Law Updates to Remember and Topics to Watch in the New Year!

Contributed by Mike Wong

Throughout 2014, we have provided updates on a variety of new laws. Below are several Illinois laws that employers should be aware are effective January 1, 2015, as well as an update on Illinois’ medical marijuana law:

  • Ban the Box – Effective January 1st, Illinois employers with 15 or more employees or employment agencies working for them are forbidden from inquiring about a job applicant’s criminal record/history prior to the applicant being selected for an interview or, if there is no interview, prior to a conditional offer of employment.
  • Pregnancy Discrimination and Accommodation – Effective January 1st, the Illinois Human Rights Act will prohibit employers with one or more employees from discriminating based on pregnancy and require reasonable accommodations for any pregnancy related condition (not just medical conditions). Employers must also provide notice to employees in their handbooks and by posting the approved Illinois Department of Human Rights Notice, which can be found here.
  • Payroll Cards – Effective January 1st, Illinois employers will be able to pay employees through payroll debit cards but must follow strict requirements regarding implementing and use, including offering other payment methods, written disclosures, voluntarily consent and limits on fees including that there must be methods to make withdraws at no cost to the employee.
  • Medical Marijuana – On September 1, 2014, Illinois started the process to license registered users, dispensaries and cultivators. Over 11,000individuals have applied to become registered users and more than 600 registered user licenseshave been approved. Licenses for cultivators and dispensariesare anticipatedto be approved within the next month or two.
    • Unemployment Implications – Employees may receive unemployment benefits, even if terminated for admitted use of marijuana while off-duty. Eastham v. Housing Authority of Jefferson County, 2014 IL App (5th) 130209. In Eastham, the Appellate Court held that an employee’s off-duty marijuana use was not “in the course of employment” and did not violate the employer’s drug policy or constitute “misconduct” under the Unemployment Insurance Act. Id. Similarly, a Michigan Court has held that absent evidence that an employee was intoxicated at work or their job performance was impaired by medical marijuana use, there was no gross misconduct and the employee was entitled to unemployment benefits. Braska v. Challenge Mfg. Co., No. 313932, 2014 WL 5393501 (Mich. Ct. App. Oct. 23, 2014).
    • Workers’ Compensation Implications – While still unknown in Illinois, a New Mexico Court held that New Mexico’s workers’ compensation law requires employers and insurers to pay for “reasonable and necessary medical care” for any work related injury and since medical marijuana is legal in New Mexico and was prescribed by a doctor for the work injury, the insured was required to pay for it. Vialpando v. Ben’s Automotive Services and Redwood Fire Casualty, 2014-NMCA-32,920 (N.M. Court of Appeals, May 19, 2014).

In 2015, employers should also be aware of the following national topics due to the increased changes in laws affecting these topics:

  • Minimum Wage – Many states and local governments, including the City of Chicago have implemented laws that will impact minimum wage in 2015.
    • States with minimum wage changes effective January 1, 2015 include: Alaska ($7.75 to $8.75 per hour), Arizona ($7.90 to $8.05 per hour), Arkansas ($6.25 to $7.50 per hour), Colorado ($8.00 to $8.23 per hour), Connecticut ($8.70 to $9.15 per hour), Delaware ($7.75 to $8.25 per hour), Florida ($7.93 to $8.05 per hour), Hawaii ($7.25 to $7.75 per hour), Maryland ($7.25 to $8.00 per hour), Massachusetts ($8.00 to $9.00 per hour), Missouri ($7.50 to $7.65 per hour), Montana ($7.90 to $8.05 per hour), Nebraska ($7.25 to $8.00 per hour), New Jersey ($8.25 to $8.38 per hour), New York ($8.00 to $8.75 per hour), Ohio ($7.95 to $8.10 per hour for workers older than 16 years old who work for employers grossing at least $297,000), Oregon ($9.10 to $9.25 per hour), Rhode Island ($8.00 to $9.00 per hour), South Dakota ($7.25 to $8.50 per hour), Vermont ($8.73 to $9.15 per hour), Washington ($9.32 to $9.47 per hour) and West Virginia ($7.25 to $8.00 per hour). (NOTE: this does not reflect changes for tipped employees, which varies by each state as well).
  • Paid Sick Leave – California, Washington D.C., Connecticut, Massachusetts, Seattle, WA, Portland, OR, New York City, Newark and Jersey City, NJ, Eugene, OR, and Oakland, CA are state and local governments that have instituted paid sick leave laws. Employers that operate in areas that have a paid sick leave law should make sure that their vacation and sick leave policies are compliant.
  • U.S. Department of Labor 2015 Targets and Changes to the FLSA – Three issues identified by the DOL as targets in 2015 are: (1) violations of federal and state minimum wage and overtime laws; (2) misclassification of workers as independent contractors instead of employees; and (3) issuance of a new proposed rule on the FLSA overtime exemption for “white collar” employees, which is anticipated as soon as February 2015.