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Ban-the-box laws now in seven states—and counting

September 5, 2014

By Nicole Sitter, courtesy of SBAM Approved Partner ASE

On August 11, New Jersey became the 7th state to pass a Ban-the-Box law, and it will not be the last.  Joining Illinois, Massachusetts, Minnesota, Nebraska, New Mexico and Rhode Island, private employers in New Jersey with 15 or more employees may no longer inquire about an applicant’s criminal history on a job application or during the initial interview process.  The District of Columbia also has a Ban-the-Box law.

This leaves Michigan employers wondering: Is Michigan next? And why all the fuss?  The answers are Michigan at some point it is very likely to join the ranks of Ban-the-Box states, and yes, the fuss is definitely warranted.

While Michigan does not currently have a state-wide Ban-the-Box law, that is not for lack of trying. In March of 2013 Michigan House Bill 4366, which would have prohibited inquiries related specifically to felonies on initial written employment applications, was introduced in Lansing. It went nowhere then and is not likely to see the light of day again in its current form. The consensus is that the wording is too vague, leaving too many potential situations unaddressed.

That is not to say that there are currently no Ban-the-Box ordinances in Michigan. The cities of Ann Arbor, Detroit and East Lansing, and Genesee, Kalamazoo and Muskegon counties have all passed ordinances that apply specifically to employees and applicants of these entities; the City of Detroit’s ordinance applies even to vendors and contractors hired by the City. Further, many of them mandate that criminal history may only be obtained through a background check once a conditional offer has been made or the applicant is being seriously considered for the position. 

The overall goal of Ban-the-Box is not to limit, much less eliminate, consideration of criminal history in the hiring decision. Its purpose is to allow applicants with criminal histories to get further along in the interview process, to give them the chance to convince potential employers that their skills and qualifications outshine their past indiscretions.

Most of these statutes and ordinances have wording that the employer can obtain criminal history via a background check either after making a conditional offer of employment, or once the otherwise qualified candidate is being seriously considered for the position. That way, employers who have policies of not employing applicants with violent felonies, or who cannot accept applicants with alcohol-related misdemeanors in the prior five years, can still disqualify those candidates before hiring them.

But it does allow for individualized assessment of the candidate. When an otherwise perfect candidate has a criminal background, that applicant can offer an explanation of the event, the severity of the charge, the time that has passed since it happened, and why it will not affect his or her ability to hold the position and succeed in it.

While the ordinances in Michigan apply only to public employees in their respective jurisdictions, Ban the Box has been spreading across the country since it came on the scene in 2010 and seems to be picking up steam.

According to the National Employment Law Project and cnsnewsroom, currently an estimated 65-68 million American adults have a misdemeanor or felony conviction in their background. This equates to approximately one in four adults. Although most recruiters and HR departments cringe at the thought of having to expand their applicant pools instead of narrowing them down, Ban the Box really is a glass half-empty/half-full proposition: Does the employer who wants no part of hiring ex-felons save time and resources by immediately disqualifying 25 percent of its potential applicants, or does it increase its chances of making a bad hire by eliminating potentially strong applicants who made mistakes in their lives but perhaps deserve second chances?

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