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Ban the Box Legislation

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In my last article, I noted that there will be some significant changes in employment law under the Trump Administration. This remains the case, and seemingly every day new developments emerge.

However there are other sources in employment laws and there are significant developments in those venues as well. One source of change can occur with state or local laws.

The so called "ban the box" legislation is an example of this. It has been common on employment applications for the employer to ask the applicant if she has been convicted of a felony. This question is asked in a "box" which appears on the application.

Some believe that this question, although seemingly neutral on its face, discriminates against minorities who may be disproportionately accused and/or convicted of crimes. An employer's policy not to hire a person who has a criminal record creates the discrimination.

The Equal Employment Opportunity Commission responded to the concern by creating rules governing how prospective employers may use this information. The EEOC posited a three (3) proxy test.

First, how recent is the conviction to the job application? Obviously, the passage of time, without any subsequent and intervening criminal convictions, should dilute the importance of the earlier conviction. There is no "bright line" on the issue, but generally, convictions more than seven (7) years old should not be used.

The second prong of the test focuses on the seriousness of the conviction. Presumably, possession of marijuana should be viewed differently than attempted murder. Evaluating the seriousness of the underlying charge prevents employers from having a blanket policy that no one with a criminal record will be hired.

The third prong continues this "individualized" analysis. It focuses on the nature of the conviction as compared to the job being sought. It is one thing for someone seeking an accounting position to have a criminal record for embezzlement; it is another to have that same applicant having a 6-year old conviction for a bar room brawl.

These tests force employers to carefully review a criminal conviction based on the individual circumstances of the applicant and the job sought. Without question, it ends the practice of a blanket policy that excludes the hiring of ex-convicts.

Opponents haven't stopped here. They want to "ban the box", eliminating the question from the application. Only after an offer has been made can the question be asked. At that point, the three (3) prong tests are applied. Several cities and states have adopted this "ban the box" legislation.

In the last legislative session, Indiana essentially "banned" the "banning of the box." The legislature provided that local towns and cities (like Indianapolis) cannot pass laws which "ban the box".

Where does that leave us? The answer is back with the EEOC three (3) prong test. Employers must conduct an "individualized assessment" of each applicant and any conviction of a crime. One size does not fit all - no blanket prohibitions are permitted. Time will tell if this is enough to prevent the perceived abuses addressed by the ban the box legislation.

If you have questions regarding "ban the box", or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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