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Employment Practices: Be Aware of Your State Laws on Background Checks

Employment Practices Be Aware of Your State Laws on Background Checks The legality of employee background checks has been a front-and-center issue for employers, especially after the Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) last year released two short guides explaining how both agencies’ respective laws apply to background checks performed for employment purposes. These agencies may have offered clarity on the issue of employee background checks but it’s important to know your state’s rulings and the nuances involved with regard to when you can ask about an individual’s criminal record.

In fact, nationwide, 100 cities and counties have adopted what is widely known as “Ban the Box” so that employers consider a job candidate’s qualifications first, without the stigma of a criminal record. When it’s okay to ask about criminal histories of job candidates in specific jurisdictions is important to know so that you don’t find yourself violating any laws and in jeopardy of an employment practices claim. It’s also important to know so that you can ensure that all your employment advertising, application forms and HR documents comply with the state or city law. In addition, HR professionals should receive training on how to properly conduct interviews where a “Ban the Box” law has been adopted.

For example, New Jersey on March 15 became the latest state to “Ban the Box” by prohibiting employers from inquiring into a job applicant’s criminal background during the initial stages of the hiring process. The law, titled the Opportunity to Compete Act, was signed by New Jersey Governor Chris Christie on August 11, 2014 and applies to public and private employers with 15 or more employees. In New Jersey, employers are now legally required to wait until after an applicant’s first interview to ask about his or her criminal history.

Washington State is also seeking to prohibit employers from asking about arrests or convictions before an applicant is deemed qualified for the job. Called the Fair Chance Act, the legislation would require employers to remove questions about past convictions and arrests from applications. Employers, however, can still ask for the information during an interview as well as tell applicants they will conduct a criminal background check. If the act is passed, it will apply to all Washington State employers but not the federal government agencies in the state.

Other states with “Ban the Box” laws include Hawaii, Illinois, Massachusetts, Minnesota, Rhode Island and Washington, D.C.

Obtaining legal counsel to review the legality of when employee background checks are permitted is critical for employers, as is having a sound Employment Practices Liability Insurance (EPLI) policy in place. EPLI coverage protects employers in the event of allegations involving workplace discrimination, sexual harassment, wrongful firing, illegal background checks, and other issues. At Axis Insurance Services, we provide a broad spectrum of businesses with EPLI insurance coverage and are available to review your specific needs to provide a program that addresses these types of workplace exposures. Give us a call at (877) 787-5258.

 

 

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Blogged on: May 29, 2015 by Mike Smith
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