A new law that takes effect in Massachusetts Nov. 4 prohibits employers in that state from asking any criminal history questions on their initial application forms. However, it does not prevent employers from asking certain criminal history questions during an interview, requiring applicants to complete a criminal history questionnaire after an interview or performing a criminal background check on applicants.
The theory is that the law will put applicants with criminal histories on equal footing with other candidates so that such applicants will now have a chance to explain their criminal histories in person during an interview. The state is the second to do what has been called “ban the box,” prohibiting both public and private employers from inquiring about an applicant’s criminal history until after a conditional offer of employment has been made. Hawaii was the first in 1998.
In 2009, Minnesota enacted similar “ban-the-box” legislation proscribing public employers from asking a job applicant about criminal records or conducting a criminal record check until after an applicant has been selected for an interview. New Mexico and Connecticut followed in 2010, passing comparable legislation applicable to public employers, but as with Minnesota’s law, private ones are exempt.
While no such “ban the box” law has been proposed in the North Carolina General Assembly yet, the legislation has passed in the legislatures of California, Connecticut, New Mexico and New Jersey to apply for state employers only. It was not passed in Maryland and postponed in Nebraska.
Even though Hawaii is the only state with long enough experience with the law to measure its impact on the employment and recidivism of ex-offenders, such a study has not occurred to date. Therefore it is hard to conclude at this point the impact this law would have if it took effect on private employers in North Carolina.
It is known that as far as Massachusetts is involved, one legal firm specializing in labor, employment and benefits says the law creates new obligations for private employers with respect to the state’s Criminal Offender Record Information, CORI, record-keeping policies and procedures while it protects employers from liability surrounding the use of CORI records in making hiring decisions. These recommendations could of course vary greatly depending what form if any kind of “ban the box” law passes in North Carolina.
For additional information on this issue, please call a member of CAI’s Advice and Counsel team at (919) 878-9222 or (336) 668-7746.