Should multistate retailers 'ban the box' in all locations? | Katz Melinger PLLC
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Should multistate retailers 'ban the box' in all locations?

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The ALDO Group, an international retailer of shoes and accessories, has 53 stores in New York. The group was recently targeted by the New York Attorney General's office for questioning job applicants about their criminal histories despite the state's 2015 "ban the box" legislation. Stores in New York were using application forms that included a criminal background question, an investigation found, and an ALDO hiring manager allegedly said that candidates with felony records would not be considered.

In a statement, ALDO said the stores in question were using an outdated version of the retailer's application form without the knowledge of its human resources department. It added that the company hasn't used criminal background checks for hiring since 2015, and isn't aware of any New York job applicant being turned down on the basis of criminal history. Nevertheless, the issue led to a $120,000 fine.

The Attorney General's office has also reached "ban the box" compliance agreements with Bed Bath & Beyond, Big Lots, Party City, and Marshalls.

Of course, New York's law, like others across the nation, does more than merely ban companies from placing a literal box on their employment applications authorizing the employer to conduct criminal background checks on prospective employees. It also prohibits employers from mentioning criminal background checks in any marketing, advertising, or promotional materials, and prevents employers from asking applicants about their criminal backgrounds until the employer extends a conditional offer of employment to the applicant. Even then, the employer must make an individual assessment of the applicant's criminal background to determine its relevance to the job, if any, and may only revoke the conditional offer of employment based on the results of the background check in limited circumstances.

According to the New York Law Journal, 31 states and over 150 municipalities have adopted "ban the box" laws, meaning that almost three-quarters of the U.S. population live in a jurisdiction with such a law on the books. Most operate much like New York's, limiting questions about criminal histories until later in the hiring process to reduce undue stigma against people with criminal backgrounds.

Employers with locations in multiple states may find that some of their locations are subject to "ban the box" laws while others are not. In such a case, employers have two basic options:

  • Adopt "ban the box" for all locations
  • Manage the application process separately for each type of jurisdiction

The second option is more challenging administratively, as it requires a clear understanding of every jurisdiction's specific requirements. However, it is an option for employers that wish to employ criminal background checks as often as possible.

Employers who choose to adopt "ban the box" restrictions as their overall company policy may need to establish stricter guidelines for their hiring managers. As we saw in the ALDO situation, a single hiring manager violating the policy could result in fines and other enforcement action.

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