Ban The Box Update: What employers need to know about background checks.

Enforcement officials signal focus on pre-employment background check compliance; non-compliant job postings provide fertile ground for litigation.

New York and New Jersey are among the more than 30 states across the nation that have adopted legislation precluding employers from querying job applicants’ criminal history -- so-called “Ban the Box” laws.  Recent enforcement proceedings and guidance from the EEOC confirm that businesses must do more than just remove the criminal history questions from their job application forms.  Employers must adopt policies to ensure that, once criminal history information is permissibly obtained during the post-offer phase of the hiring process, such information is considered consistently across the organization.  An employee should not be disqualified for employment unless the criminal history information bears on the position at issue, and the disqualification must be consistent with a business necessity.

All employees who are involved in interviewing and hiring job candidates must be trained on the permissible scope of questioning relative to criminal history information at each stage in the process.  Employers are advised to evaluate information revealed in a background check on a case-by-case basis, with due consideration for the position at issue and the time that has passed since the occurrence of any subject conduct.  Employers should avoid blanket disqualifications for certain categories of criminal history, such as disqualifying all candidates with a felony conviction.

Employers in New York and New Jersey are well-advised to ensure that certain background check language is not included job postings, and that certain criminal history information is not elicited in job applications or any pre-offer employment inquiries.  In addition, businesses in these jurisdictions must have established and implemented polices to ensure proper and consistent treatment of criminal history information through the hiring process.  There are easy to implement, cost effective steps that business can take to avoid undesirable outcomes when regulators come knocking.

Employers in New York City must be particularly attuned to the increasing government scrutiny.  In the past year the NYC Commission on Human Rights announced charges involving background check compliance violations against local and national businesses involving more than 140,000 employees and job candidates.  Recently settled cases in NYC have required employers to pay civil penalties and take costly remedial action involving training, policy changes, and affirmative notice obligations to employees.  In addition, the law provides job applicants with the ability to claim emotional distress damages and sue employers in NYC who include certain background check language in their job postings.

Relatedly, New York and New Jersey adopted Salary History Bans this month, which restrict employers from asking job candidates (and in New York, current employees), about their salary history prior to the conclusion of compensation negotiations.

For a confidential consultation regarding background check compliance, contact Lauren Paxton, Esq. () at OlenderFeldman LLP.  Lauren is well-versed in criminal history compliance and related issues at the intersection of Employment and Criminal law, having served as a Federal Prosecutor (AUSA) and employment lawyer for the U.S. Government prior to her current employment law practice.  Lauren also has past regulatory experience as in-house enforcement counsel for the financial industry regulator FINRA.  Lauren specializes in advising business owners and executives on legal issues in the workplace, applying her unique background in compliance and litigation, and guiding her clients through the modern and evolving legal landscape.

Howard A. Matalon is the Partner of Employment Practices for OlenderFeldman LLP and a Professional in Human Resources with HRCI.  Howard specializes in offering practical, cost effective solutions for business owners on workforce management issues, with over 25 years of experience handling employment and litigation matters for corporate clients ranging in size from startup enterprises to Fortune 500 companies. Howard can be reached at