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    Matthew Becker


    Seek your thoughts.  Like you I regularly receive and read updates regarding employment law and other associated HR news and information.  One such article I recently read dealt with “Ban The Box”, which (in a nutshell) are laws currently observed in seven [7] states (Nebraska not included)which deter employers from asking candidates/applicants if they have been convicted of crimes on the application.

    It is alleged that employers who do so are perceived to be “discriminatory” or exercising disparate impact on minorities.  Although seven [7] states have laws to “Ban The Box”, the EEOC considers it a best practice to use assessment tools to evaluate the convictions on certain criteria  (i.e. nature of offense, time served, etc…) in relationship to the organization vacancy and potential candidacy of the offender.

    Furthermore, the EEOC suggests that instead of asking the applicant if he/she has ever been convicted of a crime; to rephrase the statements on job applications.  Specifically, (In words of this nature) the rephrasing should reflect the content of, “…Applicants may be subject to a criminal background check, and certain offenses may and will disqualify them from employment in a particular position due to state or federal law or employer policy…”.

    As a community, I would like to see how some of you approach these topics?  (i.e. Do you have measurement or assessment tools in place and/or have you rephrased your job application statements as suggested by the EEOC?)

    Thank you in advance for your assistance and I look forward to hearing your thoughts and/or practices.

    Matthew Becker



    Happy to contribute as we see these questions daily too!

    Nationwide, over 150 cities and counties have adopted what is widely known as “ban the box”… There are a total of 26 states representing nearly every region of the country that have adopted the policies…

    Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies

    With recent filings by the EEOC that target employers who use this style of question on their applications (i.e. EEOC v. Dollar General) we are constantly suggesting to employers to move away from this practice as more and more states adopt this methodology every year. In fact, Nebraska public entities that receive taxpayer dollars are already subject to this rule. Nebraska LB 907 which was signed into law in 2014 by then Gov. Dave Heineman restricts public employers from having this on their application.
    The underlying purpose of this regulation is to force employers to prove that there is a tight nexus to the past crimes committed and their relation to job duties versus simply saying that someone has lied on their application. For example, if someone were applying to dig a hole at a new hotel for the swimming pool and failed to disclose a DUI the EEOC is suggesting that not hiring this person based on an untruthful application is unfair as there is clearly no relationship to job requirement. However if this same person fails to disclose said DUI for a job as an elementary school bus driver that has a much tighter nexus to job duty and can be used as a reason not to hire. Every person should have the ability to find work to pay their bills and support their family. It is all about pairing the right people with the right jobs. By eliminating the criminal question from the application it removes the ability for us to “pre-judge” someone based on their history and focus more on their ability to perform the job.
    The idea is that it creates advantages for minority candidates as well. Minority candidates statistically have higher contact with law enforcement which creates a disparity that they must overcome when seeking a job. According to the Department of Justice 1 in 87 white males between the age of 18-25 has had contact (arrest) with law enforcement. That same age range in hispanic/latino groups is 1 in 32. African Americans are 1 in 12. By not asking about criminal convictions during the application it helps these groups get further into the door when seeking employment. We might discover that someone has a DUI and shouldn’t drive a bus, but maybe they can work in a different department where driving is not required. The applicant might be a great person and a hard worker but if we simply look at the application and decide not to move forward we would never find that out. More than 1/3 of Americans have some type of criminal record. If you are like many employers in this competitive market you have enough trouble finding employees to fill open positions. Why would you immediately disregard 34% of all applicants that walk through the door?
    A better place to ask this question is after the employer has made a conditional offer of employment. Hi Steve, we really like you and want to move forward with you. This position requires a criminal background check due to the sensitive nature of working with school children. Is there anything that we should know about or is there anything that we should be aware of? Or – We are conditionally offering you the position based upon your qualifications and once the background check comes back with no relevant convictions we will get you started. This is intended to take away a lot of those factors which can lead to discriminatory practices. Even more complex, we’ve seen some input that show people are more bias when not asking the question. So what are we as HR professionals doing to face our biases head on??
    Felica Hazuka, SHRM-CP, PHR – COO
    One Source The Background Check Company

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