Sean Zapatka

When I started in this business back in the 1990’s, almost every job application or authorization form had two boxes at the bottom of the last page. “Have you ever been arrested or convicted of a crime?” was the question asked. The applicant was required to check one of two boxes: “Yes” or “No”.

How do you suppose an employer would typically respond when an applicant checked the “Yes” box?

Answer: The employer either filed the application in the trash can or, either consciously or subconsciously, moved the application further down the pile. In other words, employers were discriminating against applicants with criminal records before considering their application any further, and not considering the person as a whole.

“But isn’t that the whole point of a background check, to weed out the undesirables?” I hear you scream.

Not so fast. The backbone of our judicial system is that a convicted criminal is punished with some form of sentence, however major or minor. But once that debt has been paid to society, should that individual be punished for the rest of their lives because of it? Many feel very strongly that they should not.

Around ten years ago, a national movement gained momentum that wanted to stop this process and sought to “Ban the Box” on job applications and background authorization forms. It has gained huge support and each year, more and more states, counties and even cities adopt their own unique versions of the Ban-the-Box law. That is: an employer cannot ask about arrests or criminal convictions in the application process as it is discriminatory practice.

Whether you agree with the concept or not, Ban-the-Box is a fact of life for employers in most states now. It has become a significant component in the hiring process and, more notably, in the pre-employment background screening process, which is why we are writing this article.

In Connecticut for example, our home state, Ban-the-Box laws have been in effect since 2016. It’s also called the “free chance employment law” and it prohibits employers from considering a job seeker’s previous criminal conviction or arrest in the initial employment process. That is, employers cannot automatically exclude a job application based on the applicant’s criminal record.

Interestingly, Connecticut has actually just recently taken it a step further, with the enactment of the new Clean Slate and Cannabis erasure programs, which began to erase certain types of convictions in January 2023. We’ll dissect that law in a separate article because at the time of this writing – just a few weeks in – the law has literally just been implemented and is being interpreted and misinterpreted by agencies, courts, lawyers and employers all around the state. There is confusion as to what is being erased and what is not, how that is going to happen, by whom, how deep is the backlog of records still to be entered, when everything will be brought completely up to date, and what can and cannot be considered by employers. More will follow from us in this regard as the dust settles.

Laws regarding what can be considered during background checks vary by state and, in New York for example, by city. New York City employers are required to abide by city regulations that are specific and unique.

In July 2021, New York City passed local laws that protect applicants from experiencing discrimination based on criminal history, pending criminal accusations and arrest records. In order to ensure that applicants will be extended an offer of employment based on professional merit and non-criminal information, NYC determined that pre-employment background checks now be administered in two phases.

Following the candidate’s successful interview and subsequent completion of a signed authorization, the background screening process contains two steps. Step one consists of the research and reporting of non-criminal information, including the verification of education, former employment and professional licenses; as well as research into federal and state level civil litigation, state and local-level recorded documents, credit history (if permissible), full media, internet and social media sweeps etc. The Step One report is then submitted to the employer.

If the employer approves the Step One report, the employer can then conditionally offer the job contingent on a Step Two report, which includes records of criminal convictions, pending criminal actions, arrest records and research of sex offender registries and Department of Corrections’ databases. Step Two also includes driver’s history records, as certain criminal actions such as DUIs are reported as driving records. Step Two cannot commence before a conditional offer of employment has been made.

The whole concept of New York City’s variation on the Ban-the-Box law is that if an employer wants to rescind a job offer based on a criminal record, the two-step process means the employer must make it perfectly clear and transparent that their decision is based solely on that criminal record, and not on other findings.

If an employer rescinds its offer of employment based on criminal history or a pending criminal matter, it must prove that there is a direct relationship between the nature of the record and the prospective position; or that employing the individual “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public”. Non-convictions are protected by New York City law, and as such criminal charges that are dismissed, acquitted, sealed or reduced to violations cannot be reported. Convictions of violations that cannot be reported include, but are not limited to, trespassing, disorderly conduct, loitering, and harassment in the second degree. Local law also requires the employer to disclose a complete and accurate copy of every piece of information it relied on to determine that an applicant has a criminal record. Of course, the employer can also determine to hire the individual regardless of the criminal record.

Some New York City employers have determined that they may make an offer of employment contingent of a background check before either step commences. In these cases, we still provide Step One and Step Two reports separately to the employer; but the employer must confirm that the offer is still active in order to receive the Step Two report. This separation ensures that the employer will favorably evaluated the candidate’s non-criminal information prior to continuing the process.

You might ask why all this is this necessary, and I’ll give you an example: Prior to July 2021 in New York City, a single, final background report on a candidate may have included, let’s just say, two old misdemeanors for minor drugs or 3^rd degree assault, and a couple of past employment dates that didn’t add up. As a result of the old single/final report format, the employer found that they just now “didn’t like the feel” of the applicant and so they rescinded their offer (known as the Adverse Hiring Decision – more on that in another article). The reason the employer provided was the fact that former employment dates were found to be inaccurate, when in actuality, it was the criminal convictions that swayed their decision. In reality, the employer “hid behind” the employment discrepancies, but it was the criminal convictions that moved their needle.

This is specifically what the New York City Ban-the-Box law addresses: that criminal history records may only be considered separately, and subsequent to, all other records being reviewed and approved.

Many U.S. jurisdictions are changing their pre-employment laws to protect candidates from discrimination and staying diligent with local laws is paramount to the safety of the candidate, the employer and the investigators conducting the background checks. At Artus Group, we take pride in staying up-to-date with and maintaining our knowledge of pre-employment law. It not only protects us and our clients from liability, but also protects the candidates from unfair discrimination.

We’ve barely scratched the surface of the Ban-the-Box laws in this article, but at least this gives you a sense of what they are and why they are so important in the pre-employment background process.