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Testing Employer Background Screening Practices

By Christopher L. Johnson

Changes in federal sentencing guidelines will result in the early release of thousands of inmates from prison over the next several years.  The lack of employment is generally recognized as a factor that causes recidivism for ex-offenders, and there is increased political scrutiny on employers’ use of criminal history questions to screen job applicants.  Momentum is steadily gaining to “ban the box” (i.e., prohibit a criminal history check box on an employment application) in favor of an individualized assessment of job applicants to determine if criminal background screening is job related and consistent with business necessity. The convergence of these developments may leave employers feeling overwhelmed.  As suggested in our previous post, employers need not panic.  Even “ban the box” advocates recognize that employers have valid reasons for knowing who they are hiring.  The key for employers is to be aware of the recent developments and adapt their hiring processes accordingly.

Influx of Individuals with Criminal Backgrounds into the Potential Candidate Pool
In an effort to reduce prison overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades, the U.S. Justice Department has begun releasing inmates early from prison based on changes in sentencing guidelines for federal crimes.  These changes, and early releases, are part of a shift in the nation’s approach to criminal justice and drug sentencing that has been driven by a bipartisan consensus that mass incarceration has failed and should be reversed. 

The U.S. Sentencing Commission estimates that the change in sentencing guidelines eventually could result in 46,000 of the nation’s approximately 100,000 drug offenders in federal prison qualifying for early release.

Between October 30, 2015 and November 2, 2015, the Justice Department was to release about 6,000 inmates early from the U.S. federal prison population — the largest one-time release of federal prisoners.  The U.S. Sentencing Commission further estimates that an additional 8,550 inmates may be eligible for release between November 1, 2015 and November 1, 2016.

Ban the Box Gaining Momentum across the U.S. as a “Fair Chance” Hiring Reform
In addition to a growing list of private sector employers voluntarily removing the box from employment applications, governors in Georgia, Vermont, and Virginia have taken executive action in the last year to “ban the box” as it relates to applicants for public employment – considered by advocates to be a “fair chance” hiring policy.

On November 2, 2015, President Obama issued a directive instructing all federal employers to delay asking about a job applicant’s criminal history until later in the application process, embracing an initiative that promotes the consideration for hiring people with records.

There is also proposed legislation in the works that would prohibit all federal government agencies and contractors from asking applicants for criminal history information until the conditional job offer stage. Such legislation, entitled The Fair Chance Act, has recently been introduced by Senators Cory Booker (D-N.J.) and Ron Johnson (R-Wis.), where the bill was unanimously approved by the Homeland Security and Governmental Affairs Committee.

There are currently a total of 19 states across the country that have adopted the “fair chance” policies in the process of hiring public and government employees and, of those, seven states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon and Rhode Island—have removed the conviction history question on job applications for private employers.  Many cities and counties across the country have enacted similar legislation.

Nevertheless, employers may still conduct background checks but should be mindful of all applicable legal obligations.  In these locations, employers should consider removing criminal background questions from the initial application and be prepared to articulate the business necessity for rejecting candidates with certain criminal histories learned later in the hiring process.