Hunton Employment & Labor Perspectives

Nationwide, 36 states and over 150 municipalities have adopted “ban the box” laws that prohibit employers from asking applicants about their conviction or arrest records on their initial applications.  This article provides updates on recent changes and updates in Hawaii, California, and St. Louis, Missouri.

Hawaii

Hawaii has one of the oldest laws that limits an employer’s ability to consider older conviction records in making hiring decisions.  Effective September 15, 2020, Hawaii SB 2193 prohibits most private sector employers from considering conviction records that are less than seven years old for felony convictions, and less than five years old for misdemeanor convictions, excluding periods of incarceration.  Hawaii shortened its 10-year lookback period “to reduce unnecessary employment discrimination against individuals with old and relatively minor conviction records, in furtherance of economic self-sufficiency, and to reduce crime and recidivism rates.”

California

The California Department of Fair Employment and Housing (“DFEH”) recently released  Frequently Asked Questions  (“FAQs”) for California’s Fair Chance Act. The FAQs provide guidance on the Fair Chance Act, discuss how the law works, employers subject to the law, and requirements for employers to follow when they want to inquire about an applicant’s criminal history.

California’s Fair Employment and Housing Council has also updated regulations governing criminal background checks. The amended regulations, effective October 1, 2020, incorporate the requirements of the Fair Chance Act into existing regulations addressing the consideration of criminal history in employment decisions. The new regulations expand the definition of “applicant” to include individuals who are conditionally offered employment but begin working while an employer undertakes a post-offer consideration of the individual’s criminal history; and expand the scope of the Fair Chance Act by requiring that labor contractors and union hiring halls comply with the regulations when selecting workers for pool or availability lists; among other requirements.  The regulations also state that employers may be subject to local ordinances that impose additional requirements.

St. Louis, Missouri

Effective January 1, 2021, employers in St. Louis with 10 or more employees are prohibited from:

• Basing a hiring or promotion decision on an applicant's criminal history or related sentence, unless the employer can show that its decision is based on all relevant information reasonably available to it, including the frequency, recency, and severity of the criminal history, and that the decision regarding the applicant’s criminal history is reasonably related to the duties and responsibilities of the position.
• Posting job advertisements that exclude applicants based on criminal history, and using exclusionary language in job applications and other forms used in the hiring process.
• Inquiring into or requiring applicants to disclose their criminal history on initial job applications and forms.
• Seeking publicly available information regarding an applicant's criminal history.

However, an employer may ask about an applicant's criminal history:

• After deciding the applicant is otherwise qualified for the position;
• After the employer interviews the applicant; and,
• Only if the criminal history inquiry is made of all applicants in the post-interview selection pool.

These updates are good reminders for employers in states and municipalities with “ban the box” laws, regulations, and ordinances to:

• Review and update post-offer, pre-employment questionnaires and forms that ask applicants to disclose their criminal history;
• Review and update policies and procedures to reflect their “ban the box” practices; and,

Ensure that their relevant personnel responsible for hiring are well versed in “ban the box” requirements.