"Ban the Box" – A New Law in Indianapolis: And Is it Coming Soon to a City Near You?
Employers care about their customers and employees, and that includes taking steps to protect them from potential harm perpetrated by employees. Indeed, failing to take those steps can expose employers to real legal consequences for hiring or retaining employees whom they knew or should have known possessed the propensity to harm others. Now, as a result of the "Ban the Box" movement that is trending nationally, employers can end up in hot water for rejecting applicants based on past criminal history. It's the classic case of "liable if you do, liable if you don't."
The City of Indianapolis recently joined cities such as Boston, Chicago, and San Francisco in passing a "Ban the Box" ordinance. This new law will take effect on June 4, 2014. The ordinance covers companies that have contracts with the City of Indianapolis or Marion County. Those companies should immediately review their employment application forms and employment policies, revise them in compliance with the City's ordinance, and see to it that those who conduct hiring and those who interview prospective employees are aware of the law's prohibitions.
What does the ordinance do? On threat of monetary fines and injunctive sanctions, and a potential bar from future city contracts, covered companies may not ask applicants about past arrests or criminal accusations which did not result in a conviction. That may not be a problem because most companies do not ask applicants about arrests. However, the ordinance also states that from the time an applicant shows interest in a job through the date of his/her first interview, a covered company may not ask the applicant about prior convictions. In other words, covered companies are prohibited from gathering information regarding an applicant's criminal convictions until a point of time after the company first interviews the individual.
The ordinance does exempt from coverage employers hiring to fill positions that involve working with children, or where compliance would conflict with other applicable laws (such as hiring for licensed trades or professions). In addition, nothing in the ordinance prevents an employer from requesting disclosure of pending arrests or criminal accusations (although there are good reasons why employers should avoid asking about these matters). Employers can also consider past arrests and convictions that are voluntarily disclosed by applicants.
Why are municipalities enacting "Ban the Box" ordinances? They believe that such laws improve employment opportunities for ex-offenders and thereby reduce recidivism. Indianapolis' ordinance describes the public benefits as follows: "reducing the rate of recidivism would have significant economic and public safety benefits in addition to increasing the number of productive members of our community." Proponents of Ban the Box ordinances argue that employers can still review an applicant's criminal history later, but that employers should be required to make decisions about interviewing candidates without being clouded by information about prior arrests or convictions.
One final note of caution: Employers must be mindful of the U.S. Equal Employment Opportunity Commission's 2012 Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions. In this document, the EEOC warns employers that use of applicants' or employees' past criminal histories can, in some circumstances, run afoul of Title VII's prohibition on race discrimination. To avoid liability, employers must refrain from ruling out candidates who have criminal records until they perform an individualized assessment of whether exclusion of the candidate is job-related and consistent with business necessity. Employers may need to revise their hiring policies and procedures accordingly if they have not already done so.
Germaine Winnick Willett
is a member of Ice Miller's Labor and Employment Group. She and Ice Miller's other labor and employment attorneys assist employers faced with employment discrimination, retaliation, wage and hour, contract and other employment-related litigation. For additional information, contact Germaine at (317) 236-5993 or firstname.lastname@example.org
or any member of Ice Miller's Labor and Employment Group
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.