“Ban the Box” May Soon Be the Law for Government Contractors

This article by Gentry Locke attorney Brad Tobias was published in Gentry Locke’s “Virginia Construction Law Update” blog.

What is the “ban the box?”

Many employers are starting to see the term “ban the box” creep into the lexicology of phrases and buzzwords which permeate the regulatory framework imposed on government agencies and government contractors. Across the country, 19 states and more than 100 cities and counties have enacted various versions of “ban the box” legislation and rules.

So what does this term mean? Put simply, the term refers to a requirement to remove any questions regarding a person’s criminal history from job applications. Employers may recoil at the idea that that they cannot ask their job applicants about their criminal history. What is important to note, however, is that the “ban the box” rules currently in force around the county, including here in Virginia, generally do not prevent employers from ever conducting a criminal background check on job candidates or inquiring into their criminal history. Instead, the rules delay the time when these background checks and inquiries can occur. Any inquiry about criminal history and all background checks must be delayed until after the employer has made a determination that the applicant is otherwise qualified for the position.

On November 2, 2015, President Obama announced that he would be issuing an executive order requiring federal agencies to “ban the box” and to “delay inquiries into criminal history until later in the hiring process.” This directive will apply exclusively to those who seek employment with a federal agency. Private employers, even those who are federal government contractors, will remain unaffected by the new order, which has not yet been formally issued.

“Ban the box” in Virginia

Here in Virginia, state government agencies are also subject to this “ban the box” rule. In April 2015, after the General Assembly failed to pass more comprehensive legislation, Virginia Governor Terry McAuliffe issued an executive order that requires all state government agencies to discontinue using job applications that asked the candidate to disclose whether he or she had been previously convicted of crime. Several other localities have followed suit. With the issuance of this state executive order, Virginia became the 15th state out of what is now 19 states which have adopted orders and/or legislation mandating that employers “ban the box” on initial job applications.

As of late 2015, the “ban the box” rules do not apply to private employers in Virginia. As such, there is currently no rule or order that prohibits federal or state government contractors or their subcontractors from including questions about criminal history on their job applications or inquiring into this area before a job offer is extended.

Legislation “banning the box” is moving ahead in Congress

Despite genuine concerns about implementing this new rule, the “ban the box” movement which is designed to create a more open hiring process appears to be gaining bi-partisan support in Congress. In September 2015, legislators from both parties introduced a bill in both the Senate and the House which would prohibit federal contractors and agencies from inquiring into an applicant’s criminal history prior to a conditional offer of employment.

The Senate version of the bill was approved with unanimous support by the Senate Homeland Security & Governmental Affairs Committee, and some predict that the bill may be fast-tracked through the Senate and combined with the House version. The Senate version of the bill, S.2021, states that contractors may not verbally or through written form request the disclosure of criminal history record information regarding an applicant before the contractor extends a conditional offer to the applicant. The bill as it is currently drafted includes several exceptions for certain positions, including those which relate to law enforcement and national security, require access to classified information, or involve interaction with minors.

What could “ban the box” mean for government contractors?

From a legal perspective, if the “ban the box” rule becomes the law, and questions about past criminal convictions are prohibited on initial job applications, employers will need to think through their hiring procedures. Under these rules, the employer is first required to make a determination that the candidate is qualified for the job before requesting the background check. This rule is very similar to the protections put in place under the Americans with Disabilities Act, which now prohibits employers from asking applicants about their past workers compensation claims and medical problems before first determining the candidate was otherwise qualified for the job.

If this proposed rule becomes the law, it is certain that the change in timing will increase the likelihood that a rejected candidate will challenge the decision to “withdraw” the job offer. There are several ways these claims may arise based on laws and rules that predate the “ban the box” movement. First, employers must comply with the Fair Credit Reporting Act (FCRA) disclosure and consultation requirements before taking any adverse action based on background searches. In recent years, there has been a rash of FCRA claims against employers and credit agencies for errors in background reports and for failing to ensure full compliance with FCRA. This new law is likely to make those types of claim more likely.

The second area of legal challenge will come from a rejected applicant based on a claim that the decision to withdraw the job offer is discriminatory and based on his/her status as a minority. Title VII prohibits employers from wholesale rejection of applicants with criminal history without a justification that is job-related and consistent with business necessity. The Equal Employment Opportunity Commission (EEOC) has argued, and courts have held, that adopting this type of rule (exclude all those with a criminal history – arrest or conviction) has a disparate impact on minority candidates.

The EEOC’s Guidance advises employers against making an employment decision based on conviction records without first considering the following three factors in determining whether the decision is job-related: (i) the nature and gravity of the offense; (ii) the time that has passed since the conviction and/or the completion of the sentence; and (iii) the nature of the job held or sought.

The EEOC Guidance also suggests that employers should give applicants with a criminal record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense. While this Guidance does not carry the force of law, it may be considered favorably by a court and will certainly be the framework the EEOC uses when judging complaints received from rejected job candidates, so it is worth including in the process used to evaluate whether to withdraw a job offer.

Conclusion

Government contractors should pay close attention to the legislation currently pending in Congress. Although the “ban the box” rules currently only apply to government agencies and their employees, this effort will not go away soon. Even without this new rule, employers must make sure they are making thoughtful decisions about when to ask about past criminal records and how to respond to that information when it is discovered. It is especially important that employers are vigilant in their efforts to document compliance with FCRA, and maintain their hiring records for the required time periods mandated by federal law. If you have questions about these issues, contact any of the attorneys who are part of our Employment team.