HR, Training & Performance

Background Checks & Contingent Offers: Two Steps to Addressing “Ban the Box”

Share

Many employers conduct background checks on their employees, whether it is required by the industry in which they work or a sense of obligation to provide a safe work environment. While background checks remain a best practice, the proliferation of “Ban the Box” regulations have left employers confused by compliance with the new rules while also maintaining a safe work environment.  The answer is a simple – two-step solution.

Let’s first look at a little bit of background for context. “Ban the Box” refers to the question related to prior criminal convictions which have historically appeared on employers’ applications for employment. This is part of an effort to remove the barriers to employment individuals with a criminal history face, which most adversely impacts minority applicants. The guidance to employers is to:

  • Avoid viewing all criminal convictions in the same light and truly look at the circumstances involved in the situation which led to the conviction;
  • Review whether the conviction holds any relatable bearing to the job for which the individual is being considered; and
  • Reasonably answer whether the individual has learned from their prior mistakes and moved on from the episode.

Since “Ban the Box” is regulated at the state and local levels, employers should review the laws and guidelines applicable to those areas in which they conduct their recruitment. Other states and municipalities are continuously joining this list, so check on the regulations pertaining to your own jurisdiction(s) early and often.

With the appropriate frame of reference in place, let us look at the two-step solution.

Step One

In most instances, the regulations prevent background checks from being run until a formal offer to the candidate has been extended. Cue the music and put on your dancing shoes; Step One:  The offer being extended should be a contingent offer. The offer must include language in the vein of ‘this offer is contingent upon the successful completion of a background check’.

Step Two

The normal background check can be processed. If there are no records returned or if the records irrelevant to the position or occurred seven years or more in the past, proceed with onboarding your new employees.  If a criminal record should appear, be sure to follow the necessary federal, state, and local regulations, as necessary. At the federal level, this includes the Equal Employment Opportunity Commission’s guidance to be considered, as well as the Fair Credit Reporting Act. However, should a criminal conviction appear, the contingent offer of employment provides you documented grounds for rescinding the position, if necessary.

Do not let “Ban the Box” keep you from performing your due diligence in the hiring process.  Providing a safe work environment for your staff, your clients and your customers can remain the priority with the appropriate processes in place.

 

Information Not Legal Advice:  This website has been prepared for general information purposes only. The information on this website is not legal advice. The law may vary from state to state, so that some information in this website may not be correct for your jurisdiction. Finally, the information contained in this website is not guaranteed to be up to date. Therefore, the information contained in this website cannot replace the advice of competent legal counsel licensed in your state.

 

References:

https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/xperthr/pages/ban-the-box-laws-by-state-and-municipality-.aspx

https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

https://www.eeoc.gov/eeoc/publications/background_checks_employers.cfm