According to the National Employment Law Project (NELP), three-fourths of the U.S. population lives in a community that has banned the box. This leads to the question of “Can you legally ask an applicant if he or she has ever been convicted of a crime or involved in any illegal criminal activity,” during a job interview?
The answer is both “yes,” and “no.” It’s complicated. Can you legally include this question on a job application where an applicant has to click the box regarding having a criminal background? Currently you can—in *some states and municipalities, based on private or public entities.
**On the Public Level, over 150 counties and cities and 35 states (at the time of this writing) have initiated the “ban the box” movement in an effort to allow job candidates a fair chance of becoming employed. Depending on the state, county, or municipality’s laws, the candidate may not be questioned about his or her criminal background until later in the hiring process, generally after a firm offer has been made, or sometimes after a second interview where the question may be asked or a criminal background check may or may not be performed (again, this depends on your state or local laws).
**In the Private Sector, 18 counties and cities and 12 states (at the time of this writing) have extended the fair-chance laws to ban the box among them. This is all in an effort to give a potential employee a chance to prove to the employer that he or she is qualified for the position. In the past, most employers would look at the check mark in the box, and make a snap judgement based solely on that and move on to the next applicant before a fair chance was given.
So, what does happen when a potential employee applies for a position and you are genuinely interested in them, only to discover during a criminal background check that he or she has a criminal record? This is up to you. According to a *“SHRM” article dated November 12, 2018, “The dilemma for HR and hiring managers lies in finding the balance between giving applicants with a criminal history a chance to be evaluated on their qualifications and being liable for negligent hiring.”
As the ban the box movement progresses, and it is, things can get even more complicated for employers and the hiring process. It’s a little-known fact that this movement has been around for the past 20 years, but it is gaining momentum as time goes by. These days, more than ever, Human Resources has their work cut out for them, and if you don’t currently have an HR department or someone certified in HR at your disposal, it is imperative that you seek out a reputable HR company like Stellaris Group in Roswell, Georgia.
Stellaris Group is well-versed about Government Compliances, Recruiting and Hiring, Employee and Labor Relations, and day-to-day HR management. If you need to know what you can or can’t do as a business owner or an employer, you can count on Stellaris Group to keep you in the know.
Dawn Stastny, SPHR, SHRM-SCP is the Managing Partner and Founder of Stellaris Group, LLC. To learn more about Human Resources Outsourcing and Consulting, connect with her at 678-935-6001 or by email at Dawn.Stastny@Stellaris.Co