The Growing "Ban the Box" Movement; Hiring With Eyes Wide Shut

06/24/2014 04:14 pm ET | Updated Aug 24, 2014

"Ban the Box" is a national civil rights movement fostered by advocates for job candidates with criminal convictions. They have been successful in several states and municipalities to require employers to remove the questions on job applications and in job interviews:

"Have you been convicted of a crime or do you have any felony charges pending?"

Employers won't know the rest of the story because of government regulation until a conditional job offer has been made. At that point, a criminal record check can then be performed to complete the selection process. Most record checks will provide up to ten years of felony records, and five years of misdemeanors.

The State of Hawaii led the way in 1998 by prohibiting all employers from asking the question before a conditional job offer. Various levels of control have been put into place throughout the country. Some states have prohibited "the box" for public sector employment consideration; some include the private sector as well. Some permit discussion of convictions in interviews.

Seven states have required the removal of the criminal conviction question and 45 cities and counties have followed suit.

Federal legislation, H.R.6220 - The Ban the Box Act was introduced by House Representative Hansen Clarke (D) Michigan. It has been kicked around the halls of Congress and is now in Committee.

"To prohibit an employer from inquiring whether an applicant for employment has been convicted of a criminal offense, except in certain circumstances."

The exception would be after a conditional offer of employment has been made or there is unreasonable safety risk, such as schools and law enforcement agencies.

Here is the rest of the story. This can provide false hope to candidates with felony convictions...and not to mention evidence for law suits on behalf of job candidates. A conditional job offer rescinded after acquiring criminal conviction information will undoubtedly lead to an increase in discrimination suits and expected reporting requirements to the government.

The State of New Jersey, kicking it up a notch, has introduced a bill requiring employers to submit rationale to the State for rescinding offers of employment including relevance of the conviction to the position. In an apparent automatic appeal, the applicant would be given ten days to explain the circumstances. This would hold up the hiring process. This would add additional time, process, and state scrutiny to the selection process.

The Equal Employment Opportunity Commission (EEOC) has strengthened their guidelines for determination of discrimination and has begun prosecuting employers with a ban on hiring people with felony convictions.

Employers will proceed through the selection process with diligence but without the full complement of qualifications. The employment process proceeds with one main concern; Candidates may have an essential portion of their relevant experience temporarily out of view. Plus employers have the legal responsibility to maintain a safe work environment. They need to know the facts and potential liability.

While agreed by most, employers should not have a blanket prohibition of hiring candidates with criminal convictions; they need the ability to weigh the relevance of the types of convictions considering the position in question. My employers have had clear policies about considering criminal convictions and the criteria for particular positions. No blanket prohibition, but careful and thoughtful analysis, contemplating not only the type of position, but the candidates' explanation of history of success since the conviction and/or conviction. Taking that ability away from hiring managers without specific cause is unproductive and up to the scrutiny of government, frankly inappropriate.

We must keep in mind that the relative significance of a candidate's background is a critical element in meeting the legal requirement of hiring the most qualified candidate. The candidate with a conviction of financial malfeasance will be under additional scrutiny for a money handling, banking or financial position; convictions of drug related or violent crimes scrutinized in an educational setting.

The unavoidable fact that remains is the requirement to provide employment history. Gaps in employment will ALWAYS result in fair and probing interview questions. Employers need to perform an appropriate and diligent review of background history. Of course, if there is a falsification of information concerning employment and gaps in history, this would still remain a reason to deny employment opportunity.

Remember, truth or consequences will always prevail. Legislation cannot and will not protect falsification of information.

But what is a job candidate to do when applying for jobs with a criminal conviction? Longstanding logic prevails. Preempt the problem: offer facts front and center about the conviction in an interview. Provide a letter of explanation and references addressing character and work ethic. Explain gaps in the resume/application. Employers respect that approach with eyes open to convictions.