On June 10th, the Seattle City Council unanimously passed a “Ban the Box” ordinance regarding the use of criminal history in employment decisions. This ordinance, which takes effect November 1st, covers all employees who work at least 50% of the time in Seattle.
While this may not impact your business today, all employers need to understand it, as this is a part of a national trend that is very likely to affect us.
What the Ban the Box law does:
Seattle’s law stipulates that an employer cannot inquire about an applicant’s criminal history, until the employer has screened the applicants based on their qualifications to determine who is qualified.
The check box on a job application asking “Have you been convicted of a crime?” will be a thing of the past. The question about criminal histories will more likely become utilized as part of the interview process.
- Employers cannot advertise or implement any policy that categorically excludes individuals based on their conviction or arrest record. This means job advertisements that specify “no felonies” or “clean criminal history required” will not comply.
This is the direction that the EEOC is already going, putting Seattle’s ordinance in line with federal policy.
- Employers can inquire about arrests, but are prevented from taking a negative action based solely on an arrest, as it is not proof of unlawful conduct.
‘Legitimate business reasons’ to take action based on criminal histories:
Once you’re to the point that you can legitimately inquire about an applicant’s criminal background, the law specifies when an employer has a “legitimate business reason” to take action based on a criminal history.
The employer must believe one of two things:
- That there will be a negative impact on the applicant’s or employee’s fitness or ability to perform the job due to their criminal background.
- That the conviction will harm or cause injury to people, property, the company’s reputation, or its business assets.
It might sound to you like you will be able to proceed as you have done in the past if you operate based on these premises — but this ordinance goes on to specify the factors that must be considered in the employment decision. Remember, you can’t have a blanket policy!
For each person you consider, you must contemplate all of the following:
- Seriousness of the conviction or pending charge
- Number and types of convictions
- Time that has elapsed since conviction, excluding periods of incarceration
- Verifiable information related to the applicant’s rehabilitation or good conduct, which the individual provides
- Specific job duties and responsibilities
- Place and manner in which the job will be performed
Positions that are exempt from Ban the Box legislation:
It makes sense that the Ban the Box law excludes positions in law enforcement, crime prevention, security, criminal justice, or private investigation. Also exempted are positions that have unsupervised access to children under 16, developmentally disabled people, or vulnerable adults.
It makes a bit less sense that they also exempted the U.S. government, state of Washington, or any other government, except the City of Seattle.
What happens if you decide not to hire someone based on their conviction?
Another interesting twist in this ordinance is what happens if you decide not to hire someone based on their conviction:
You have to hold the position open for a minimum of two business days after you notify an applicant of your decision.
The purpose is to give the individual the opportunity to correct or explain the information. This road bump could make it difficult for employers to quickly fill positions necessary for the running of their businesses!
Why all employers should care about the Ban the Box movement:
Even though this specific law applies only to employees working 50% or more of their time in Seattle, it’s a good time for all employers to review their own policies.
This “ban the box” movement is taking place all over the country, and it’s very likely we might see a federal policy in the not too distant future. As you know, if you’re following Seattle’s Paid Sick Leave law, which is now being duplicated by Tacoma, Seattle often sets the tone for the entire state.
How to protect your business from lawsuits:
You can start by taking a few proactive steps today to protect your business from lawsuits:
- Remove language from your job postings that implies you have categorically banned applicants that have certain convictions.
- Alter your internal processes to be sure the questions about criminal history, and the background check, come after the applicant has been prequalified for the job.
- Discuss proper interviewing and hiring procedures with your supervisors and hiring managers.
- Lastly, modify your hiring timelines to ensure you can hold a job for two days after you’ve learned of an employee’s criminal background.
While the Ban the Box ordinance does not give job seekers a financial remedy, it does provide for civil penalties after the first transgression. As we see efforts to create a new protected class for people with criminal convictions, it seems likely that in the near future this could become a new basis for lawsuits.
As of now, the EEOC is the entity that will bring lawsuits in this regard. For example, In mid-June, the EEOC filed a lawsuit against BMW claiming that their criminal background check policy had a disparate impact on African Americans. It’s not hard to predict how this is going to proceed in the future!
Keep in mind, the ordinance does not require you to hire someone with a conviction if you do have a legitimate business reason not to. It does require that you thoughtfully consider each person as an individual, and make sure your decisions have a sound basis.
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