Search form

Proposed ‘Ban the Box’ Legislation Would Limit Criminal History Inquiries by Federal Contractors

By Richard I. Greenberg and Susan M. Corcoran
  • September 17, 2015

Bills pending in both houses of Congress would make it unlawful for most federal contractors to request a job applicant, whether orally or in writing, to disclose criminal history record information before the applicant has received a conditional offer of employment.

The bills, introduced on September 10, 2015, exempt from its prohibition positions in which consideration of criminal history record information prior to a conditional offer is required by law. The bills also exempt federal contracts that require an individual hired under the contract to have access to classified information or to have law enforcement or national security duties.

The bills, S. 2021 and H.R. 3470, enjoy bipartisan support and may move quickly in both the Senate and House.

That this legislation is receiving strong support from Republican legislators is unusual. According to the National Employment Law Project, seven states, Washington, D.C., and 26 cities and counties, primarily in “Blue” or Democratic-leaning jurisdictions, now have some form of “ban the box” laws for government contractors or private employers. Business and industry groups typically have resisted such laws as posing an unnecessary hurdle to obtaining relevant information from applicants for many positions early in the hiring process. For example, some argue that an employer-contractor seeking to hire a Chief Financial Officer should not have to make an offer of employment before asking whether the applicant has been convicted of embezzlement. Many large contractors hire thousands of employees yearly, and may find such obstacles overly burdensome.

“Ban the box” laws generally expand on the Equal Employment Opportunity Commission’s controversial 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.” The Enforcement Guidance requires employers to conduct an individualized assessment of the job-relatedness of a criminal conviction to the job to which the candidate applied and encourages employers not to ask about criminal background information before making a job offer.

If you have any questions, please contact the Jackson Lewis attorney with whom you regularly work.

©2015 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

See AllRelated Articles You May Like

September 14, 2018

New Version of Model FCRA Summary of Rights Released; And You Have One Week to Comply

September 14, 2018

A new model “A Summary of Your Rights Under the Fair Credit Reporting Act” disclosure form document was released on September 12, 2018, by the Consumer Financial Protection Bureau (CFPB). Employers and background check companies should begin using the new form by September 21, 2018. The federal agency responsible for oversight and... Read More

August 28, 2018

South Carolina Law Amended to Allow Expungement of Certain Criminal Records

August 28, 2018

An amendment to South Carolina law allows individuals to have certain criminal records expunged following a successful court petition. This means that, among other things, a prospective employee would not be required to disclose on an employment application criminal record information that has been expunged. The new law, Act No. 254,... Read More

May 31, 2018

Connecticut Bans Inquiries into Applicants’ Wage and Salary History

May 31, 2018

Connecticut is the latest state to prohibit employers from asking prospective employees about past compensation. Effective January 1, 2019, employers may not ask (directly or through a third party) about a prospective employee’s wage and salary history unless the prospective employee volunteers the information. According to Governor... Read More