More than 150 cities and counties in 25 states across the country have adopted what is widely known as “ban-the-box” laws so that employers consider a job candidate’s qualifications first, without the stigma of a criminal record. More jurisdictions are also adopting policies in addition to ban-the-box, such as incorporating the best practices of the 2012 U.S. Equal Employment Opportunity Commission (EEOC) guidance on the use of arrest and conviction records in employment decisions and strategies for compliance with existing anti-discrimination laws under the Fair Credit Reporting Act (FCRA).
Ban-the-box laws, or the Fair Chance policy, vary from one jurisdiction to the next. Generally, these laws require hiring managers to put off asking about a candidate’s criminal history until after an interview has been conducted or a provisional job offer has been extended. Most ban-the-box laws also contain additional notice requirements, job-related screening tests, and limits on the scope or type of criminal record that can be considered.
While proponents of the ban-the-box initiatives view this as an important measure to unfair barriers to employment for those with criminal records, it has caused confusion and frustration on the part of employers as well as greater employment practices risks. For example, employers such as hoteliers with properties throughout the country have to comply with a number of variations on banning-the-box, not only from state to state, but also from city to city.
How are hoteliers handling background checks now that the ban-the-box movement has taken hold throughout the country? According to a recent article in HotelNewsNow, one hospitality management group removed the criminal background box question from all its employment applications, and now researches an applicant’s criminal history as part of a background check after making a conditional offer. They consider the applicant for the role, reviewing the job type, the possible criminal background and how that might affect the person’s ability to do the job or the risks that could be created for the company.
Another hotel management group cited in the article removed the criminal background portion of the application in those states that have such a law in place. When conducting a background check, the management group makes individualized assessments and considers the age of the offense and relevance to the job. Candidates also have the opportunity to review the results of their background checks. In addition, a candidate is made aware of and given an opportunity to rectify if something is not correct on his or her background report, and is provided the opportunity of their rights as specified by the FCRA.
It’s important for a hotel operation to have its HR professionals work with attorneys who have employment screening expertise to review the organization’s hiring practices that may be impacted by ban-the-box laws in each location. HR should be prepared to provide counsel with a list of all hiring locations, a document outlining the hiring process, and documents that are involved in the hiring process, including employment applications, offer letters and adverse-action notices.
Having a sound Employment Practices Liability Insurance (EPLI) policy in place is also critical. EPLI coverage protects employers in the event of allegations involving workplace discrimination, sexual harassment, wrongful firing, illegal background checks, and other issues.
