‘Ban the box’ laws gain momentum in Illinois, New Jersey

Hiring managers take note: State laws banning criminal background checks until after a candidate has been offered an interview are gaining momentum.

Earlier this month, Illinois House Bill 5701, otherwise known as the Job Opportunities for Qualified Applicants Act or the “ban the box” law, was signed into law by Illinois Gov. Pat Quinn. The law prevents criminal background checks in the private sector until after employers and hiring managers pursue the interview process with potential applicants. Only then will employers – those with 15 or more employees – be able to inquire about past criminal offenses.

 “This law will help ensure that people across Illinois get a fair shot to reach their full potential through their skills and qualifications, rather than past history,” Quinn said after signing the bill on July 19. “It will also help reduce recidivism, fight poverty and prevent violence in our communities by putting more people back to work.”

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The measure follows prior support by the Democratic governor to offer second chances to ex-offenders. Lawmakers in New Jersey, meanwhile, approved the Opportunity to Compete Act (Assembly Bill No. 1999). It was drawn up to remove “obstacles” to employment for people with criminal records, according to the bill.

The New Jersey proposition was sent to Gov. Chris Christie’s desk after passing the state’s legislative chambers on June 26. 

“There seems to be a ton of states that are considering it,” says David Ritter, a partner in the Chicago office of Barnes & Thornburg LLP. “It’s apparently one of the real hot issues that is percolating.”

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According to the National Employment Law Project, 12 states have embraced efforts to ban the box in the hiring process. Also, 60 cities and municipalities, including big private employers like Target and Wal-Mart, have adopted “fair chance” policies to employment, says the NELP.

The Illinois law, which will go into effect on Jan. 1, 2015, will not apply to certain jobs where employers must exclude applicants with criminal histories. Meanwhile, Ritter explains that he believes most, if not all, employers will comply.

“A number of employers are going to have to change their processes, but it’s probably not a big change – it’s more of a psychological change,” Ritter tells EBN.  Under the new process, candidates will fill out the job application, the employer will decide who it wants to interview, and once the employer tells the candidate they’ve been selected for an interview, the candidate will sign a form giving permission for the criminal background check.

After practicing labor employment law for 30 years, Ritter explains that he is confident that smaller employers will have more of an issue complying, even if the state law is just an extension of federal requirements laid out in the Equal Employment Opportunity Commission’s strategic plan for 2012-2016.

“Larger employers just change the process and they send out the memo, but for smaller employers it may be a little more difficult,” Ritter notes. “They may say it’s more of a burden on them, but the law is the law.”

In New Jersey, smaller businesses may also be faced with a similar fate should Gov. Christie sign the provision into law, says John Sarno, president of the Employers Association of New Jersey, an association comprised of more than 1,000 employers that vary from small, family-owned businesses to large, multinational companies.

“Employers with HR departments know this and it’s a minimal disturbance because they are already following the federal guidance, but it’s the smaller employer [with little or] no HR understanding that are going to get a wakeup call,” Sarno explains.

He adds that managers at smaller businesses will now be forced to be “less arbitrary in their decision making.”

Inquiries placed to Gov. Christie’s office were not immediately returned.