Here in North Carolina, legislators recently proposed new “Ban the Box” legislation. This legislation would prohibiting state government from asking about a candidate’s criminal history until making a conditional offer of employment (HB 233, HB238, and SB174). “Ban the Box” is already law in other cities, counties, and states, and it is an idea that is gaining in popularity and support. The idea is to give equal opportunity to individuals with criminal histories while still protecting the employer.
At the moment, the North Carolina legislation only applies to hiring by state government entities, not private employers. It also does not apply to positions that specifically require consideration of a criminal history. (These would include jobs in financial positions, law enforcement, or with certain vulnerable populations.) Although it does not apply to private employers in North Carolina, there are some locations in the United States where “Ban the Box” extends to private employers. This appears to be a growing trend that is becoming a general standard or best practice.
Let’s assume for a moment that “Ban the Box” applies to you as an employer. You wouldn’t ask about criminal history on the application, but that doesn’t mean that you can’t – or shouldn’t – ask at all. The law changes the timing until after the employer makes a conditional offer of employment. It does not make it unlawful for employers to ask a candidate if he or she has a criminal history. It also does not impact an employer’s ability or fiduciary responsibility to search criminal records.
Here’s an example. You’re hiring for a position and have a candidate with a good resume and ten years of experience applicable experience. On the application, she indicated a previous conviction for a misdemeanor. The application provided no room for additional information or explanation. Does she get an interview?
If you have a practice of excluding all candidates with a criminal history, you would disqualify the candidate and move on. (We’ll discuss the potential pitfalls of that practice in another post.) Some would say that any interaction with law enforcement or with the courts shows poor judgement or “lack of character.” However, here are some misdemeanors in North Carolina that we’ve seen while conducting pre-employment background screening:
- Fishing without a license
- School attendance law violation
- Sell or distribute tobacco product to a minor
- Consume alcohol under age 19
- Dog vaccination
- Take or possess undersized bluefish, clams, flounder, oysters, red drum, spot trout, striped bass, or weakfish
- Urinate in public
- Illegal dumping
If the candidate was convicted of one of those crimes, would it make her a threat to the company or its reputation? Should she get the opportunity to explain the situation? Did you potentially just disqualify an ideal candidate because of one stupid past mistake? What have you lost by asking that one limited question without considering other information?
As a private employer, you may not be required to “Ban the Box.” If there is no requirement, you have two choices – ask about criminal history on the initial application or don’t ask about criminal history on the initial application. If you don’t ask on the initial application, you still have the opportunity to ask after a conditional offer of employment has been made. This is important because it opens the opportunity for a potential employer to gather more relevant detail and assess the honesty of the candidate.
Whichever way you choose, make sure you get the whole picture of the candidate.
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Protus3 specializes in security system design, security consulting, corporate investigations and other investigative services. Partner with Protus3 and we will examine each situation to identify threats and develop solutions for your best outcome.