Last
week, President Obama made headlines when he announced a forthcoming executive
order to “ban
the box” on federal job applications. The President directed the federal Office
of Personnel Management to modify its rules for federal agency hiring decisions
to delay questions about an applicant’s criminal history until later in the
hiring process. While many federal agencies have already taken this step, the
President’s action will make the “ban the box” practice universal for federal
government hiring. In making his announcement, President Obama cited statistics
indicating that 70 million Americans (nearly one in five Americans, and one in
three Americans of working age) have some sort of criminal record.
President
Obama’s announcement comes on the heels of new proposed “ban the box” legislation
introduced in both houses of Congress. The Fair Chance Act was introduced in September by a
bipartisan group of legislators in the Senate and the House of Representatives.
The Act would prohibit federal contractors and agencies from inquiring into an
applicant’s criminal history prior to a conditional offer of employment. Certain
“sensitive positions” involving law enforcement or national security duties or
access to classified information would be exempted from the “ban the box”
prohibitions. The proposed legislation would not prohibit an employer from
revoking conditional offers based on the results of a criminal background check
conducted after the conditional offer is extended. On Oct. 7, the Senate
Committee considering the bill (the Homeland Security and Governmental Affairs
Committee) unanimously voted to approve the legislation.
As
Minnesota employers are aware, Minnesota already has a “ban the box” law on the books. Eighteen other states and dozens of
cities and counties also have enacted some form of “ban the box” legislation,
although only six other states’ laws cover private employers. Since 2014, Minnesota
law has prohibited private employers from inquiring into a job applicant’s
criminal history at the application stage. The law allows Minnesota employers
to ask applicants about their criminal record once they have been selected for
an interview or given a conditional job offer if interviews are not conducted. You
can read our blog’s prior coverage relating to Minnesota’s “ban the box” law here and here.
In the
wake of President Obama’s announcement last week, some commentators have questioned
why the President did not extend the “ban the box” prohibition to federal
contractors in addition to federal agencies. New executive orders placing
additional legal prohibitions and requirements on government contractors have
been a regular occurrence during President Obama’s administration, during which
more than a dozen executive orders on issues ranging from raising the minimum
wage, to requiring paid sick days, to excluding bids from companies with labor
law violations, have been issued. President Obama’s spokesperson has indicated
that the President prefers congressional action addressing a “ban the box”
prohibition on federal contractors to ensure that the prohibition lasts beyond
his administration (as executive orders may be easily revoked by future
administrations).
Employers
with federal contracts should stay tuned for further developments as the Fair
Chance Act works its way through Congress. And, all employers should be mindful
of the patchwork of “ban the box” laws applicable in various states and cities
in which they operate to ensure their application processes are compliant.
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