‘Ban the box’ rewrites some employer rules

Samantha Monsees, associate in the Kansas City office of labor and employment firm Fisher Phillips LLP
Samantha Monsees, associate in the Kansas City office of labor and employment firm Fisher Phillips LLP

Have you been convicted of a crime? Increasingly, you no longer have to check yes or no.

With an executive order signed May 2, Kansas Gov. Jeff Colyer “banned the box” for people who apply for executive branch jobs with the state. Ban-the-box rulings forbid employers from asking a prospective employee about prior criminal convictions on the initial job application. These laws are aimed at delaying the point in the hiring process when an employer can ask about criminal history. Proponents believe this practice helps balance the inequities convicted felons face when they attempt to re-enter the workforce.

Thirty-one states have passed similar laws. For private employers in Kansas City, ban the box takes effect June 9, following an ordinance the City Council passed in February.

Delaying this question until later in the hiring process can slow things down — a particular difficulty in industries where companies need to put new hires to work quickly. Further, a July 2016 National Bureau of Economic Research report found that when employers have no information about an applicant’s criminal history, they may make assumptions about which candidates have been offenders, and avoid interviewing certain individuals — particularly minorities — based on bias.

Regardless of the potential problems with ban-the-box rulings, they increasingly are gaining footholds in states and municipalities. Kansas state agencies and most Kansas City businesses will have to adjust their hiring practices.

In Kansas City, the ordinance applies to companies with six or more employees. These businesses still may inquire about an applicant’s criminal background, but only after interviewing and determining that the candidate is otherwise qualified for the position. It does not apply to positions where companies are required to exclude applicants with certain criminal convictions because of local, state or federal laws. A company would also be within its rights not to hire a job candidate if the crime committed is reasonably related to work the position requires — for example, a job handling customers’ money.

There are potential penalties for failing to adhere to Kansas City’s new ordinance. The Human Relations Department will handle complaints. If it finds probable cause that a violation occurred, it will refer the case to the city counselor for possible prosecution in municipal court. The court can assess penalties, including civil penalties, back pay and damages.

To adhere to the new law, Kansas City employers should:

Remove all questions about criminal history from job applications, hiring documents and job advertisements.

Make sure recruiters and hiring managers understand that they may not ask questions about criminal history at the interview stage.

Conduct job applicant background checks only after interviewing and determining the candidate is qualified for the position.

Determine how the company will conduct an individualized assessment if a background check reveals a criminal history. The Kansas City ordinance requires a company to demonstrate that its decision not to hire a candidate with a criminal history is based on the frequency, recentness and severity of the criminal record, and whether it is reasonably related to the duties of the position.

Make sure every step of the hiring process is documented to prove compliance. For every applicant who is not hired, documentation should include a description of the decision-making process and all the factors that led to the rejection.

Kansas City employers still have time to make necessary changes to their hiring practices to avoid liability before the ordinance goes into effect. Moreover, considering the inevitable spread of ban-the-box laws across the country, coupled with the headache of complying with different laws across different cities and states, employers might consider placing limits on obtaining and using criminal background information now, even before local laws require it. Who knows? They may just expand their applicant pools for the better.

Samantha Monsees is an associate in the Kansas City office of labor and employment firm Fisher Phillips LLP.