Employers are facing increased pressure regarding screening workers for criminal convictions during the initial-evaluation stage of the hiring process. Nonprofit organizations, such as the National Employment Law Project, and government agencies, such as the Equal Employment Opportunity Commission, have raised concerns that such inquiries are used to improperly exclude otherwise viable employment candidates from the job pool and that these exclusions disproportionately affect individuals protected from discrimination under state and federal employment laws.
Advocates have proposed removing the requirement that applicants disclose their criminal conviction records on initial applications for employment (“banning the box”) in the hope that otherwise-qualified individuals with criminal histories will be considered for employment. Advocates assert the criminal history of many applicants does not impair their ability to perform jobs that currently require applicants to disclose that history on initial applications, but that such early disclosure hinders the applicants’ ability to obtain gainful employment.
For many employers, particularly those in industries that work with vulnerable populations such as the elderly, the young or the infirm, banning the box represents a paradigm shift. Facing relatively high turnover rates for low-skilled positions, employers in many healthcare industries seek both to sort through large numbers of applications and to ensure the safety of those persons entrusted to their care. Given the changing legal landscape and the attention of the EEOC, employers would be wise to avoid sticking their heads in the sand and confront the new reality – and requirements – head on.