Evaluating criminal record “hits”
Special care must be taken if employment will be denied when a candidate states that they do not have a record and one is developed. The problem is that the vast majority of the records we find are minor and do not rise to the level of the “criminal record”. Shoplifting of low value items, simple assault, minor drug possession, underage drinking are examples of offenses that do not rise to the level of a criminal record in many states. Employers must be aware that additional information to determine the level of the offense rises to a “criminal record” as defined by state statutes prior to taking an adverse action.
Should employers consider voluntarily ban the box altogether regardless of whether or not your company is required to follow state or local legislation? Ban the Box laws and second chance programs are supposed to give ex-offenders with a prior criminal record a chance to find work. But, how many ex-offenders fail to divulge information for fear providing information about a past criminal history that could affect their employment or are unsure of the exact status of their criminal case. This is a significant issue that has cost individuals opportunities for employment.
Why ask the applicant to self report? If your vendor conducts the correct criminal check you will not have to worry about the box. If there is a record, it will be developed and the determination can be made at that time. No need to subject candidates to the potential mistake of lying on the employment application. Where Ban the Box laws have been implemented, the legislation is often convoluted, requires multiple steps, and subjects employers to litigation if employers fail to follow the mandated steps not to mention the rejection of a candidate for a position. Additionally, cities and states often review and revise their Ban the Box legislation and unless employers constantly vigilant, it is possible to be in violation of legislation where your company is located and not even be aware.