Hunton Employment & Labor Perspectives

“Ban-the-Box” legislation has seen steady growth throughout the country for more than two decades.  Currently, there is no federal legislation on the topic for private employers but a good number of states have limited their ability to inquire about or make decisions based on a prospective employee’s criminal background history.

Earlier this year, Harris County, Texas, which encompasses a substantial majority of the City of Houston, became the sixth Texas city or county to embrace a “ban the box” policy when it adopted the Fair Chance Policy.

On October 20, 2021, the California Department of Fair Employment and Housing (“DFEH”) issued a press release to announce its plans to use unspecified technology to conduct online searches for statements in job advertisements that violate the Fair Chance Act (“FCA”). According to the DFEH, during a one-day review, it was able to locate over 500 job advertisements that violated the FCA because they stated that the employer would not consider job applicants with criminal records.

Uber Technologies, Inc. has been sued in a class action lawsuit alleging the company’s use of criminal background checks discriminates against Black and Latinx drivers. The complaint, filed in the U.S. District Court for the Southern District of New York on April 8, challenges Uber’s “unlawful use of criminal history to discriminate against its drivers in New York City as well as its brazen noncompliance with human rights and fair credit laws.”

Named plaintiff Job Golightly, a Black resident of Bronx County, New York, drove for Uber from 2014 through August 2020. Golightly claims that his criminal history consists of a single 2013 misdemeanor speeding violation from Virginia. According to the lawsuit, until 2017 Uber had relied solely on background checks conducted by the New York City Taxi and Limousine Commission (TLC). Plaintiffs allege that in mid-2017, in response to negative news coverage on assaults committed by drivers, Uber began using the credit reporting agency Checkr to conduct additional background checks on current and prospective drivers. As a result, in August 2020 Uber allegedly conducted a background check on Golightly that revealed his 2013 speeding violation. One day later, Golightly claims that Uber deactivated him from its platform, preventing him from driving for the company.

In January 2021, New York City amended the Fair Chance Act to expand protections for both applicants and employees with criminal histories.  The amendments take effect July 29, 2021, adding additional protections for workers in the state.  Prior to the amendment, NYC’s Fair Chance Act prohibited employers from making an inquiry about an applicants’ criminal conviction records until after a conditional offer of employment is extended.  Then, an employer was required to balance a variety of factors to determine job-relatedness of the conviction.

Imagine this: you are an employer in California, and you recently hired a new employee.  You ran your own background check, which did not turn up any criminal convictions.  However, the employee’s job duties include submitting online applications to a government agency, which requires the employee to complete a Live Scan background check with the Department of Justice.  The Live Scan reveals that the employee has a past criminal conviction that will prevent her from submitting the applications.  You terminate the employee, and she tells you the conviction was judicially dismissed.  What do you do?

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.

As we have previously reported here, here, and here, Virginia has enacted several new labor and employment laws that are poised to dramatically change the legal landscape for employers in Virginia.  In addition to the laws discussed above, Virginia has also enacted “ban the box” legislation for simple possession of marijuana.

On December 17, 2019, the Fair Chance to Compete for Jobs Act of 2019 (the “Fair Chance Act”) was signed by the President as an amendment to the National Defense Authorization Act.  This federal “ban-the-box” law proscribes federal agencies and contractors from asking about a job applicant’s criminal history until after they make a conditional offer of employment.  For federal contractors, the law only extends to positions related to a federal contract.  The Fair Chance Act will go into effect on December 17, 2021.  The Office of Personnel Management and General Services Administration will issue implementing regulations before the law goes into effect.

Illinois joined a handful of other states when its prohibition on employer inquiries into applicants’ prior wage or salary information took effect this week.

Under the law, no employers in Illinois can ask about the wage or salary histories of job applicants.  If an employer receives salary history information voluntarily from the applicant, the employer still may not use that information to screen candidates.

Criminal Background Inquiries in the Hiring Process:  Class Action Litigation and “Ban the Box” Trends in 2018

Wednesday, August 8, 2018 1:00 p.m. – 2:00 p.m. ET

Speakers

Robert T. Quackenboss Partner, Hunton Andrews Kurth LLP Washington, DC

Susan Joo Associate, Hunton Andrews Kurth LLP San Francisco, CA

On April 3, 2018, San Francisco amended its Fair Chance Ordinance, the city and county’s so-called “ban-the-box” legislation that limits how private employers can use an applicant’s criminal history in employment decisions.  The amendments, which take effect on October 1, 2018, expand the scope and penalties of the San Francisco ordinance and add to the growing framework of ban-the-box legislation across California.  The complete text of the amendment can be found here.

In June, new laws will go into effect that restrict employers’ ability to request and use criminal history information about applicants in three jurisdictions: Kansas City, Missouri; the State of Washington; and the city of Spokane, Washington.

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The new year brings new laws for California employers to grapple with. Below we highlight the most significant new employment laws affecting California employers as of January 1, 2018.  Companies based in California or with operations in California are encouraged to review their policies and procedures in light of these developments.

On January 22, 2017, the City of Los Angeles ‘banned the box’ when the Los Angeles Fair Chance Initiative for Hiring (Ban the Box) (the “Initiative”) went into effect, prohibiting private employers in Los Angeles “from inquiring into or seeking a job applicant’s criminal history unless and until a conditional offer of employment” is made to the individual. In doing so, Los Angeles becomes the fourth California city to ‘ban the box’ with greater protections than the state statute, and the second to do so with respect to private employers. If an employer makes a ...

On April 3, 2015, Virginia Governor Terry McAuliffe signed an Executive Order that “bans the box” and prohibits Virginia agencies, boards, and commissions from asking questions about an applicant’s criminal history on employment applications.

“Ban the Box” Laws

At least thirteen states, the District of Columbia, and almost 100 cities and counties have passed so-called “ban the box” laws, which restrict the scope of permissible investigations into job applicants’ criminal history, and, in some cases, the timing of such inquiries.

On August 11, 2014, New Jersey’s Governor Chris Christie signed into law the “Opportunity to Compete Act.”  Beginning on March 1, 2015, employers will be prohibited from publishing advertisements providing that the employer will not consider any applicant with an arrest or conviction record, and more importantly, employers will be prohibited from inquiring about applicants’ criminal records “during the initial employment application process,” orally or on job applications.  “Initial employment application process” is defined as the period beginning with the initial inquiry about prospective employment until the employer has conducted a first interview, determined the applicant is qualified, and selected the applicant as the employer’s first choice to fill the position.  If an applicant voluntarily discloses information regarding a criminal record, the employer may inquire about it.

Illinois recently joined a growing number of states and municipalities that have passed “ban the box” laws regulating when employers can inquire into an applicant’s criminal history. 

On July 14, 2014, the Council of the District of Columbia (“D.C. Council”) unanimously voted to “ban the box,” approving a bill that will restrict when an employer may ask a job applicant about his criminal background.  The bill will now go to Mayor Vincent Gray for his signature, and then to Congress for approval.

In September, the Newark Municipal Council passed Ordinance 12-1630, which prohibits any employer with five or more employees from asking job candidates before or during the application process about their criminal history (i.e., the ordinance “bans the box” from an employment application).