This is a guest blog post by Gregory D. Stobbe SPHR JD, a Senior Human Resources Advisor for Creata USA.
Who is behind the Ban the Box movement, you ask? (Hint: it is not those anti-corrugated cardboard activists again). It is in fact, none other than Pat Quinn, the Governor of Illinois. To be fair, he is simply joining the growing ranks of governors and mayors across the country to follow suit in making this initiative the law.
The official name for this law is the Job Opportunities for Qualified Applicants Act, which becomes effective in Illinois on January 1, 2015. Commonly referred to as “Ban the Box” (BTB), as most employment application forms contain a question regarding the applicant’s criminal convictions, preceded by a small “check box”. At a summary level, this law prohibits "covered" private employers, including employment agencies, (one qualifier is that an employer must have 15 or more employees) from inquiring into a job applicant's criminal history until either: 1.) An applicant has been deemed qualified for the position and an interview has been scheduled with that applicant OR 2.) If no interview is scheduled, until a conditional offer of employment is made to that applicant. However, certain categories of employers are exempted, so this law should be carefully examined for its specific applicability.
One of the changes mandated by this law is that an employer may no longer, on an employment application (or any equivalent inquiry, whether written or verbal), ask about an applicant's criminal history until one of the two conditions outlined above is met. What the application specifically defines as "criminal history" varies depending upon the employer and the jurisdiction in which they are located.
The legislative intent behind BTB is to ensure that applicants, who may otherwise be qualified for a position, are not initially screened out from consideration because they "checked the box". They must first be judged based upon the merits of the qualifications they present for the position to which they are applying. The BTB proponents say it is only fair to give people with a criminal history a fair shot at a second chance.
Multi-jurisdictional employers should take special care to ensure that they understand and comply, where applicable, with the differing laws to which they may be subject. If there is any uncertainty, an employer should work closely with their employment law counsel. Laws coming into effect prospectively are not the only concern employers should have in this area. For example, in Illinois, the Illinois Human Rights Act has for some time, prohibited employers from asking applicants to divulge arrest record information, or expunged or sealed criminal convictions, when making employment related decisions.
Notwithstanding the changes required to comply with current and new laws affecting the application process, employers who work with background check vendors, should also determine if there will be a downstream effect on the timing of initiating such a check. It is wise to look at the entire hiring process holistically and to be prepared for these changes.
What’s a prudent employer to do? Well, according to those activists and the new law, as long as you “Ban the Box”, it’s “In the Bag”.
The information contained in this article is provided solely for the general interest of the readers and should not be relied upon or construed as legal advice and is not a substitute for obtaining legal advice from an attorney licensed in your jurisdiction. The author assumes no liability or responsibility for any errors or omissions in the content of this article.
The author, Gregory Stobbe SPHR JD, is an independent human resources consultant located in Chicago, IL. Should you have any questions or comments, please feel free to reach out to him at firstname.lastname@example.org.
©2014 by Gregory Stobbe SPHR JD. All rights reserved.
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