Employers frequently are constrained in their attempts to do criminal background checks on applicants because of so-called “Ban-the-Box” statutes/ordinances which often prohibit them from asking an applicant about or externally checking for criminal background histories unless and until a conditional offer of employment has been made or some other statutory condition has been satisfied. For example, Los Angeles very recently passed what it labeled the “Fair Chance Initiative Ordinance.”
Under the L.A. ordinance employers may not: include any question on an application form requesting an applicant’s criminal history; ask about or obtain information about an applicant’s criminal history until a conditional offer of employment is made to the individual. Moreover, the L.A. law goes a step further in placing restraints on employers by requiring them, even after receiving information on an applicant’s criminal history, to perform what is described as a “written assessment” in which the applicant’s particular criminal history is analyzed in the context of the duties of the particular position for which the individual has applied.
Finally even after engaging in the statutorily mandated analysis described above, L.A. employers must then utilize what is referred to as a “Fair Chance Process” under which applicants have an opportunity to provide the putative employer with relevant information regarding such criminal record.
The proliferation of so-called Ban-the-Box statutes will probably continue in many jurisdictions that heretofore have not statutorily limited the use of criminal background inquiries in the application process. Nevertheless, the process under which the L.A. ordinance requires employers to utilize an individualistic approach to the use of criminal background information is certainly analogous to what the EEOC has advised employers to utilize when confronting the issue of criminal background information on applicants. Thus, from a practical standpoint, employers would be well advised, even in the absence of statutory constraints, to use criminal background information prudently. This means that employers carefully analyze, on an individual basis: how old was the particular criminal offense committed by an applicant; how serious was the offense – naturally crimes of violence or embezzlement or the like will be looked upon much more critically than will a minor drug possession offense that occurred many years ago; and how does such prior criminal act relate (if at all) to the position for which the applicant has applied (for instance, an applicant who has applied for a driving position with a prior DWI on his record, or an applicant applying for a position in a finance office with a prior petty theft conviction).
To summarize, criminal conviction historical information is often relevant, but should never be considered in a vacuum. Like any other applicant information, employers, where permitted to do so, should undergo a careful and individualistic analysis of any applicant’s criminal background information to avoid needless workplace litigation.
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Howard K. Kurman is an employment attorney. Mr. Kurman regularly counsels clients on all aspects of proactive employment/labor issues. He represents employers ranging in size from as small as 20 employees to those employers with geographically disparate locations consisting of over 4,000 employees. Mr. Kurman assures, through regular contact with his clients, that they promulgate and maintain the most effective employment policies that will, to the extent possible, minimize their legal exposure in today’s litigious workplace. Mr. Kurman offers advice on employee handbooks, employment agreements, and covenants not to compete as well as confidentiality and non-disclosure agreements. Previously, Mr. Kurman was the chair of the firm’s Labor & Employment Practice Group.
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