Business Advantage: Ban The Box – an HR Prospective

by Dakotah Wagner

As more states and cities move toward a “Ban the Box” hiring process, many businesses are unsure of what to do regarding applicants who have been previously convicted of a crime. The “Ban the Box” movement allows candidates to be considered for their qualifications first, without the stigma of a conviction or arrest record. For nearly all businesses, only criminal convictions can be considered in the application process, not arrests.

Consistent with “Ban the Box,” employers should be careful about inquiring about a candidate’s criminal background before a conditional offer is presented to the candidate. Discussing the candidate’s criminal background during an interview opens the opportunity for the employer to be accused of discrimination.

If a candidate who has been conditionally offered a position has a previous criminal conviction, human resource professionals generally follow the Equal Employment Opportunity Commission’s recommended process. The EEOC suggests considering the conviction using three sliding scales: the recency of the conviction, the relationship between the conviction and the nature of the job, and the severity of the conviction. For example, a candidate with a DUI conviction from five years ago is conditionally offered a non-driving position with a company. The candidate would have a good chance of being brought on by the organization because the conviction is five years old and does not pertain to the position.

When businesses are considering rescinding the job offer or stopping the candidacy for someone based solely on their conviction, it is always recommended to give the candidate an opportunity to explain the conviction before a final decision is made. The EEOC calls this the pre-adverse action process. This gives the candidate an opportunity to defend their behavior and remind the employer of their favorable conduct since the conviction was adjudicated.

With the tightening labor market of the United States, businesses that are willing to consider candidates with prior criminal convictions for an employment opportunity may find themselves at a competitive advantage. While the candidate may certainly be talented and loyal, there are also potential financial benefits. For example, wage-offsetting programs like the Work Opportunity Tax Credit may apply to businesses and candidates, depending on the candidate’s socio-economic circumstances. This government program provides a tax credit for employers who employ those who are receiving government assistance. As the “Ban the Box” discussion continues to evolve, more businesses are taking a longer look at qualified candidates with prior convictions — a candidate pool that, in a different labor market, they may have overlooked.

Dakotah Wagner SHRM-CP is human resources manager at Arizona SHRM of Greater Phoenix.

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