You’ve probably at least heard of the so-called “Ban the Box” movement, a campaign aimed at convincing employers to remove any checkbox on applications designed to elicit information regarding an applicant’s criminal record. Many states, counties and cities have enacted “Ban the Box” legislation, but it’s certainly not the law in all jurisdictions. And the “Ban the Box” laws in place are not uniform.
Oklahoma has its own version of “Ban the Box.” On February 24, 2016, Governor Mary Fallin signed Executive Order 2016-03, which prohibits state agencies from asking about felony convictions. That order does not apply to jobs for which a particular criminal history disqualifies the applicant as per law or regulation. It also does not apply to private employers. It does, however, note that 1 in 12 Oklahomans is a convicted felon.
The U.S. Equal Employment Opportunity Commission has taken the position that employers should not inquire about applicant arrest or conviction records because the practice has a disparate impact on racial or ethnic minorities. This is the EEOC’s interpretation of the law, not the law itself, but will necessarily guide the EEOC in its own investigations and legal actions. The EEOC is clear that employers can broach these issues during job interviews, provided that the “the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”
Best practices for minimizing potential liability
Oklahoma employers are free to inquire about these topics on job applications, but should adhere to the following practices in order to minimize potential liability.
First, respect the EEOC guidance and determine which types of criminal activities, if any, are incompatible with the job duties of each particular position to be filled. Review applicable job descriptions. Discuss essential functions with supervisors. An employer should be able to explain why it has a need for the conviction information requested. For instance, a prior conviction for embezzlement may rule out an applicant applying for a bank teller position, but it may not have any impact with respect to a warehouse position. While the EEOC would likely find the first inquiry permissible, it would likely feel very differently about the latter.
Second, don’t allow the lack of application information to cause you to act impermissibly. Commentators have recently suggested that the “Ban the Box” movement has actually increased discrimination against the very groups it was designed to protect. These commentators suggest that some employers have omitted the request, but have instead employed stereotypes that associate minorities with criminal histories and simply choose not to interview minority applicants. You have the ability to inquire about relevant criminal histories at the interview stage. Do not prematurely rule out an applicant.
Third, do not inquire about “arrests.” An arrest is not necessarily indicative of criminal activity or guilt. The EEOC has taken the position that it is not indicative of wrongdoing and should generally not be the subject of inquiry, on an application or during a pre-hire interview.
Fourth, limit your inquiry to “convictions” or “guilty pleas” if this is consistent with business necessity. This type of history is a more reliable indicator of actual criminal conduct. Also, consider whether you can limit your inquiry to certain types of criminal convictions, i.e., financial crimes, violent crimes, etc.
Fifth, if you believe that it is necessary to solicit additional types of information, know exactly what information you are seeking and notify your applicants accordingly. Confusion abounds when confronting a “deferred sentence” or a “suspended sentence.” A “deferred sentence” may occur when an individual pleads guilty to an offense, but is not immediately sentenced. Instead, the judge delays sentencing to allow the individual to complete probation instead of serving time in jail or in prison. A “suspended sentence” occurs when an individual is found guilty and sentenced, but the judge delays the actual serving of the sentence in order to allow the individual to serve probation. These punishments may be associated with convictions or guilty pleas, and may therefore be indicative of criminal activity. However, applicants may not understand that this information is responsive to a request for information regarding “convictions” or “guilty pleas.” For this reason, employers should consider specifically requesting disclosure of deferred or suspended sentences that result from either a conviction or a guilty plea.
Sixth, consider eliminating any inquiry regarding pleas of “no contest” or “nolo contendere.” These pleas are not necessarily indicative of guilt. There are many reasons why an individual may choose to enter these pleas, which are extremely common with respect to traffic infractions.
Seventh, consider whether you will receive the information sought through a consumer report, also known as a background check. Employers are free to obtain criminal information for employment purposes provided they adhere to the requirements of the federal Fair Credit Reporting Act. An employer who has adopted this practice may not need to incorporate criminal inquiries on its applications.
Consider these practices and then take another look at your job applications. You may need to add additional information or include a few specific follow-up questions. You may also consider maintaining different versions of your application to use for different positions.