NPR reported on 9/7/2018 that the order goes into effect on October 1, 2018, and will prevent state departments from using an application check box to ask job seekers if they’ve been convicted of a felony. A criminal history review could still happen later in the hiring process, state departments cannot use criminal history as an initial screen for applicants.
What are “ban-the-box laws” about?
Laws “banning the box,” are aimed at helping formerly convicted felons return to the workforce by delaying the point in time during the hiring process when an employer may ask applicants about their criminal history. The banned “box,” refers to the one an applicant must check on the initial application disclosing prior criminal history, e.g., “Have you ever been convicted of a crime?” Generally, employers often automatically discard applications when the “yes” box is checked, hurting certain groups of applicants in a discriminatory way.
Additionally, Gov. Snyder has directed the Michigan Department of Licensing and Regulatory Affairs remove all criminal history questions from licensing applications, unless required under state or federal law. Instead, applicants — primarily in skilled trades professions that require occupational licenses — will instead be asked to attest to their ability to serve the public and their rehabilitation from any former offenses.
What does a ban on the box mean for your business?
For Michigan private sector employers, this executive order will not affect your recruiting and hiring practices.
However, beginning with Hawaii in 1998, many states, cities, and counties have adopted ban-the-box policies that may extend to private employers. So multi-state employers should consult with their employment attorney to navigate the national patchwork of ban-the-box laws.
Additionally, with a tight labor market, employers are may find it difficult filling positions without expanding the applicant pool. Consequently, it may be necessary to expand the pool of potential job applicants to include those with criminal convictions. If so, it would be prudent to identify specific job duties and compare them to an applicant’s specific criminal history. With this comparison, employers will be better able to assess the potential risks of hiring an applicant with a prior conviction.
If you would like more information about complying with employment recruiting and hiring laws or to evaluate whether you must revise your existing employment application to remove any questions related to criminal history, contact employment attorney Jason Shinn. He has collaborated with employers since 2001 to address federal and Michigan employment law matters, and successfully litigated claims under both.