"Ban-the-box" laws are reshaping hiring, and HR professionals need to stay informed. These laws, now covering federal contractors and private employers across many jurisdictions, prohibit asking about criminal history on job applications. The goal is to give candidates with criminal records a fair chance by delaying background inquiries until later in the hiring process.
The public policy behind these laws is clear: enable individuals with past convictions to re-enter the workforce and contribute meaningfully to society.
As Emily Borna, an attorney with Jackson Lewis in Atlanta, noted, this doesn't mean employers must overlook criminal history entirely. Instead, these laws require that candidates be evaluated on their merits first, with background checks conducted only as warranted.
Many HR professionals mistakenly believe they can't ask about criminal history at all. In reality, most states allow these inquiries after a conditional offer of employment. However, some laws go further — limiting what can be considered (like marijuana convictions in California) or how far back employers can look.
Additionally, certain jurisdictions require individualized explanations of why a conviction is relevant before rejecting a candidate. Illinois, for example, mandates explicit reasoning in adverse action letters.
HR must also coordinate the interplay between "ban-the-box" laws, fair chance laws, and clean slate initiatives. For example, background checks may be required for...
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