On Monday, November 2, 2015, President Obama announced the federal government is joining the long list of large employers, 19 states, and more than 100 cities and municipalities that currently “ban the box” on employment applications. The President outlined several ideas to improve the reintegration of the formerly incarcerated into society. He noted that “millions of Americans have difficulty even getting their foot in the door to try to get a job; much less actually hang onto that job … so, we’ve got to make sure Americans who paid their debt to society can earn their second chance.” To that end, he announced, “I’m taking action to ban the box for the most competitive jobs at federal agencies.” The “box” refers to the place on job applications where applicants are asked to indicate whether they have been convicted of a crime. Research confirms that a criminal record reduces the likelihood of a job call back or offer by nearly 50 percent.

President Obama continued, “The federal government, I believe, should not use criminal history to screen out applicants before we even look at their qualifications. We can’t dismiss people out of hand simply because of a mistake they made in the past.” He was careful to note that he is not claiming that criminal history is irrelevant. Rather, “when it comes to the application, give folks a chance to get through the door.” The White House issued a release that explained that President Obama has directed “the Office of Personnel Management (OPM) to take action where it can by modifying its own rules to delay inquiries into criminal history until later in the hiring process.”

This executive action only affects federal employment, but President Obama also urged Congress to act on legislation that would ban the box on all employment applications.

While there are numerous large employers that have already adopted such policies, the EEOC reports that 92 percent of employers run criminal background checks on all or some of their applicants. Employers need to be aware of the relevant state, city, and county laws that apply to each location in which they operate. The EEOC is actively investigating in this area and is looking to bring lawsuits. Therefore, employers need to keep abreast of this issue and be aware of how future developments can affect their policies and procedures.

For more information on how this could impact your business, contact:

• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Employment and Labor Practice Group.