Criminal History Inquiries and the Hiring Process

Can’t Get Hired

Ex-felon Vertis Williams applied for 80 jobs over several months, and has been denied an interview after each and every one of his applications. Williams suspects that the common theme that can be found throughout all of his applications is the infamous “box” to be checked, showing that he has a criminal history. Williams and many other former criminals experience a significant amount of initial resistance from potential employers when applying to jobs on account of their illegal backgrounds, before receiving the opportunity to even speak with a hiring agent face to face.

“Ban the Box” as a Solution

A “ban the box” law operates by prohibiting employers from refusing to accept applications from someone with a criminal history, or requiring them to note criminal history on the application. Colorado is the 12th state to pass a “ban the box” bill into law, while dozens of cities across the United States have also done so.

Proponents of the “ban the box” approach argue that because minority groups had a higher percentage of persons with convictions, discriminating against persons because of convictions was a proxy for racial discrimination. Opponents argue that hiring based on a person’s own individual behavior is not a proxy for anything.

Supporters of the bill argue that ex-felons do not get the chance to meet the hiring managers of many companies before being rejected on account of their past. Applicants are dismissed out of hand without being given the proper opportunity to showcase their talents through interviews. Employers can still run background checks on their applicants after narrowing down the pool to a select number of individuals, after which any potential ex-felons will have been given the chance to present themselves in a positive and convincing manner.

Opponents of the initiative argue that employers endanger their workplace if they allow ex-felons to be hired, as the employees could easily reoffend while working. Such recidivism would potentially open the door to lawsuits on the grounds of negligence while hiring. And if, after the background checks are complete, the company does not hire the applicant in question because of their history, the company will have wasted time that could have instead been spent on more qualified applicants without criminal backgrounds. The fact that employers may not discover their applicant’s history until later in the process may hamper their ability to hire their ideal candidate. It may also waste the time of the ex-criminal, as “ban the box” may encourage them to apply to organizations that are less likely to hire them.

Colorado’s Statute

In Colorado, employers may not ask about criminal history. They may not state in an advertisement or on an application or form that persons with a criminal history may not apply. And they may not require disclosure (or ask about) an applicant’s criminal history on an initial application.

The law goes into effect September 1, 2019 for employers with more than 11 employees, and September 1, 2021 for all other employers.

There are three exceptions to these new regulations. There is an exception where relevant statutes or regulations already prohibit individuals who have committed certain crimes from being employed in particular capacities (like eldercare or daycare providers and teachers). Employers may still conduct criminal history checks if they are required to do so by the law. And the “ban the box” laws are not triggered if the employer in question contributes to a program that promotes employment of individuals with a criminal background.

Employers will still be able to conduct background checks as necessary, but this statute will prohibit them from inquiring into the criminal history of the applicant during the initial segment of the hiring process. Violations of the statute can include fines.

Practical Steps

Employers should review their applications and job advertisements for compliance. If they believe they may be exempt, or want to revise their hiring process, they can contact their employment attorney to discuss their situation.

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Featured Image by Rebecca Sidebotham.