States With Pro-Employee Laws: Ban The Box

Or, States That Don't Suck For Employees, Part VI

You may have heard the term “ban the box” but not know what it means. These laws generally prevent employers from asking about applicant arrests or convictions at the beginning of the application process, and only allow inquiries after the applicant passes their initial screening. Why? Because about 70 million Americans have some criminal record, and the majority of them are minorities. An entire class of citizens has been made almost completely unemployable due to criminal records that have nothing to do with their ability to do jobs.

Thirteen states, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Mexico, New Jersey, and Rhode Island, along with 67 cities and counties, have passed ban-the-box laws. Tampa and Jacksonville are just some of those cities. Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island have the only statewide laws applying to private employers. The rest apply to government employers.

Hawaii’s law was the first, and it prohibits employers from asking about criminal records until a conditional offer of employment is made (similar to what ADA requires for inquiries about disabilities). Since 1998, when this law went into effect, the incidence of repeat criminal offenses in Hawaii has dropped by 57%. Illinois law is similar to Hawaii’s.

New York’s law says employers can’t discriminate in the hiring process against applicants who have convications unless there’s a direct relationship between one or more of the previous criminal offenses and the employment sought, or if the employment would involve an unreasonable risk to others.

New Jerseys’s brand new law prohibits posting of ads saying those with criminal histories won’t be hired and from asking about arrests and convictions until the applicant is the top candidate selected. Then the employer must also consider factors like rehabilitation, good conduct, length of time that has passed, and how the crime relates to the employee’s suitability for the job.

Massachusetts’ law bans questions on written applications but not in interviews. If employers are going to refuse to hire based on a criminal record, they must first provide the applicant with a copy of the record.

Minnesota’s law is similar to Hawaii’s, but state law there also says government employers can’t discriminate unless the conviction is directly related to the job sought. It requires all employers to consider job-related factors in using criminal records.

Rhode Island’s law prohibits asking on written applications but employers can ask during interviews.

The ban-the-box movement is all about giving folks a fair chance. If they’ve done the time, let them get on with their lives. Americans usually like to give people a fair second chance, so let’s do that for the 70 million Americans who have criminal records. If we’re like Hawaii, letting people with records get paying jobs will drastically reduce repeat criminal offenses.

Employment Law Blog Carnival Mother’s Day Edition

This month’s Employment Law Blog Carnival has lots of posts with great career tips - so good, your mother might give them to you. Although Mother’s Day has passed, it’s never too late to take guidance from mom.

Here’s the best employment law advice a mother can give, in the best employment law blogs a mother could want.  

Don’t Talk To Strangers

Instead of going on reality shows to meet strangers in a misguided attempt to find love, you meet the best mates doing what you enjoy. In Jon Hyman’s post, The Bachelor as discrimination? Publicity stunt lawsuit undermines legitimate discrimination claims, things didn’t go so well looking for love in all the wrong places. If only they’d listened to mom . . .  

Behave Yourself

If you didn’t behave as well as mom wanted (or if your employees didn’t), you might want to read Daniel Schwartz’s post, EEOC Releases Important Guidance on Use of Criminal and Arrest Records By Employers and John Holmquist's post, Asking the question: the EEOC's enforcement guidance on arrests and convictions.

Don’t Make Rude Gestures

Adam Whitney’s post, You’re Damned if You Fire an Employee Who Gives You the Finger tells you what you can (and can’t) do with an employee who loses a finger or flips you the bird.

Work Out Your Problems

John Fullerton's post, FINRA Rule 13803: Compelling Arbitration Claims to be Filed in Court, tells about yet another way employers and employees may work out problems.

If You Can't Say Anything Nice, Don't Say Anything

Ari Rosenstein and Eric Meyer talk about the downsides of social media in Social Media: Useful Tool or Employment Pitfall? and Report: Employees share WAY more Facebook info than they think
If only the people in their posts had listened to Mom.

Study Hard

Sometimes, no matter how hard you study, you won't do well. That's because there's something wrong with the test. In Jacksonville Firefighter Litigation Shows Perils of Using Improperly Validated Tests, George Leonard tells how one test went terribly wrong, and advises employers how to make sure promotion and hiring tests won't be thrown out.

A great example of someone who should have studied harder is in Mark Toth's How to Hire If You Want to Get Fired. Learn what not to do when interviewing candidates in a hilarious what-not-to-do video. Personally, I hope you all interview like this. It will make my job on the employee side way easier.

Mind Your Own Business

Philip Miles and Jessica Miller-Merrill tell us about legislation to keep employers from snooping into employee's passwords in SNOPA - Proposed Federal Legislation on Employer Social Networking Password Requests and US Bill Would Make Employer Requests for Facebook Access Illegal.
MYOB, nosy employers.  

In Reviewing Private Social Media Accounts as a Candidate Screening Tool: Dangerous, even with Policies & Procedures, Shaun Reid warns of the dangers of not listening to mom's good advice about snooping.

Family Is The Most Important Thing

In 6 Steps to Avoid Family Responsibilities Discrimination Claims, Dawn Lomer advises employers how to avoid getting in trouble when employees put family first.

Don't Lie

Mom's advice is particularly good when your lie ruins things for everyone else. If you lie about your need for Family and Medical Leave, you make it harder for everyone who really needs it.  Robin Shea does a terrific analysis of when an employer can fire an employee for lying about FMLA leave in When can an employer fire an employee for medical leave fraud?

Don't Hit

Mom would not be proud of all the boss-directed violence in the game I talk about in my post, Top Reasons Why Kick The Boss Is One of the Top Apps. Or maybe she'd be glad you have an outlet instead of violence.

90% of Life is Showing Up

Okay, that wasn't mom, it was Woody Allen. But as a mom, I tell my kids this all the time. Randy Enochs tells us about the importance of showing up to work, even with a disability, in 9th Circuit Discusses "Attendance" as Essential Function of Job in ADA Claim. [Note to faithful readers - no, you aren't hallucinating. This is a late edition to the ELBC, but a very worthwhile one. Mom would say, "Better late than never." I'm glad Randy decided to show up at ELBC!]


Be an Overachiever

I saved Robert Fitzpatrick for last because he definitely did mom proud this week. He asked me to post three of his posts in ELBC. Bob, you're putting us all to shame. Here they are:

(1) Proposed FederalLegislation to Prohibit Employers from Requiring or Requesting Access to SocialMedia of Employees or Applicants

(2) No Settlement Negotiations Privilege

(3) USERRA and the Escalator Principle

There you have it: all my favorite employment law bloggers in one handy spot. If you read them all, not only will mom be pleased you did your homework, but you'll come away with lots of useful knowledge (unlike when I studied the law against perpetuities).

From everyone here at the Employment Law Blog Carnival, here's hoping you had a wonderful and happy Mother's Day! If you follow all the tips and advice in these blogs, you'll spend way less time in court and have more time to spend with mom.