Although most passed and proposed 2017 “Ban the Box” legislation affects employment (except for one law, which affects Washington D.C. landlords and real estate agents), the “Ban the Box” movement can very easily transfer over into the rental industry. Additionally, most property owners are employees themselves and will want to know if their company’s hiring procedure is being changed to accept applicants with criminal records. While the federal Fair Chance Act has been halted, many states, cities, and counties have enacted their own “Ban the Box” legislation this year.
What is “Ban the Box”?
“Ban the Box” legislation aims to remove the ‘box’ on employment applications (and, in some cases, rental applications) that ask if an applicant has ever been convicted of a crime. In using this check box for employment purposes, pro-ban the box activists and politicians argue that the use of criminal records and credit history, before an applicant has been interviewed, discriminates against applicants who have served their time. Needless to say, legislation centered around the “ban the box” movement can not only affect your employment policy, but your employment screening as well.
As Ryan Green stated in his article, Seattle, WA, New York, NY, and the state of Jew Jersey have already passed “Ban the Box” legislation. A list of currently passed and proposed “Ban the Box” legislation for 2017 is below.
Fair Initiative for Hiring (see ordinance)
Effective July 1, 2017, Los Angeles employers are prohibited from asking job candidates about their criminal history until a conditional offer of employment has been made. If an employer decides to withdraw or cancel their conditional offer after reviewing an individual’s criminal history, they must conduct a “written assessment that effectively links the specific aspects” of the applicant’s criminal history “with risks inherent in the duties” of the position sought. For example, an applicant with a recent DUI applying for a job that requires the applicant to frequently drive. Before taking adverse action, the employer must provide a “fair chance process” (in addition to the written assessment) that gives the applicant 5 business days to provide information regarding the accuracy of the criminal history information.
If adverse action is taken after the above process, the employer must notify the applicant of the decision and provide the applicant a copy of the written reassessment. The fair chance initiative (more commonly known as a part of “ban the box” laws) applies to any private employers that employ at least 10 individuals who perform at least two hours of work on average each week within the city. All records and documents related to applicants must be kept for 3 years.
Fair Chance Ordinance (No. 17-14)
This bill prohibits employers with at least 20 employees from inquiring about an applicant’s criminal history on an employment application. It also prohibits employers from asking about criminal history during an initial interview. Notice must be provided to the applicant before making any inquiry into an applicant’s criminal history, and a poster developed by the City’s Office of Labor Standards Enforcement (OLSE) must be visible within the workplace. If an applicant has criminal records, the employer must judge those records on 2 criteria: job-relatedness and time elapsed since conviction. If an applicant is denied based on criminal history, the employer must notify the applicant twice, once before the final decision and again once the decision is finalized. Applicants have 7 days to produce a notice of error. Employer must maintain all records for at least 3 years.
DANE COUNTY, WISCONSIN
Current Employment Restrictions and Potential “Ban-the-Box” Movement (municipal code 39.03)
Dane County’s current restrictions (as per municipal code 39.03) allow employers use criminal records when deciding to accept or deny an applicant, if the record is within 3 years and is substantially job-related, or if it will affect the employee’s ability to obtain a license or permit for the job. Employers may also consider a criminal record if it affects the dependability of the employee required by state, local, or federal law. While the current regulations do not currently “Ban-the-Box”, County Executive Joe Parisi has made initiatives to create legislation requiring Dane County employers to adopt similar regulations.
The Job Opportunities for Qualified Applicants Act (820 ILCS 75/)
While I will not go into full detail about Illinois’ “Ban-the-Box” laws as they also prohibit employers and employment agencies from inquiring and considering criminal records for employment purposes, please be aware that this act went into effect January 1, 2015. If violated, the Illinois Department of Labor’s Director shall provide a written warning (with 30 days to remedy the violation) for the first offence. A second violation can occur a civil penalty of up to $500, with a third violation incurring up to $1,500.
PENDING: City of Texas Proposes to Remove Municipal and County Ban the Box Laws (see House Bill)
While Austin, TX, Dallas and Travis Counties have already passed “Ban the Box” legislation, the State of Texas is looking to prohibit cities or counties from adopting or enforcing “Ban the Box” regulations. While House Bill 577 has only been introduced, if passed next year, it will take effect around September 1, 2017.
PENDING: Fair Criminal Record Screening for Housing Act of 2016 (B21-0706)
Although this bill has not yet been passed and is currently under council review, it could prohibit landlords from asking about an applicant’s prior criminal convictions until after they’ve extended a conditional offer of tenancy. After a conditional offer has been extended, property owners can only consider denying applicants based on specified types of convictions, and only if they’ve occurred in the past 7 years. Considerable crimes include: murder, assault, arson, sex abuse, robbery and fraud. If the rental offer is withdrawn, based on nondiscriminatory factors, the applicant can then request the reason in writing without charge. Property owners who fail to comply will be fined $1,000-5,000, depending on the amount of rental units owned. If passed, make sure you request tenant screening reports after extending a conditional offer.
Has your area been affected by “Ban the Box” legislation? Do you think similar legislation to Washington D.C.’s will spread to other states?
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