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“Ban the Box” Hiring Law Sets National Standard for Federal Contracts

by Keith Sanders

A little-known provision attached to the National Defense Authorization Act for Fiscal 2020 prohibits federal contractors from asking about a job applicant’s criminal history. Signed into law in December 2020 by former Pres. Donald J. Trump (R), the provision is intended to prevent prematurely excluding people who have been incarcerated from the hiring process.

Known as “Ban the Box,” similar provisions already exist in 16 states, as well as many other localities. “‘Ban the Box’ laws certainly have the effect of making a path for people who otherwise wouldn’t have thought they had access to a certain classification of jobs,” said Olaoluwaposi Oshinowo, special counsel with Wiley Rein LLP.

However, the federal “Ban the Box” provision doesn’t apply after a conditional job offer is extended. During later stages in the hiring process, government contractors may ask about criminal history.

Because federal contract workers make up roughly a quarter of the country’s workforce, however, allowing those with a criminal past to prove themselves at least initially will provide them with opportunities previously denied.

Even if an applicant reveals his criminal history, employers must still abide by Equal Employment Opportunity Commission (EEOC) 2012 guidance that says excluding an applicant because of criminal conduct may result in unintentional bias.

Moreover, since national incarceration rates reflect ethnic and racial disparities, excluding an applicant because of criminal history can also run afoul of federal anti-discrimination laws. A 2013 Labor Department directive prohibits “intentional discrimination on the basis of race, national origin, or other protected bases, and policies or practices that have a disparate impact on these protected groups and cannot be justified as job-related and consistent with business necessity.”

On the federal level, the Office of Personnel Management (OPM) asked the Office of Management and Budget to renew the previously approved information form (Optional Form 306) that will be used to “Ban the Box.” OPM gave formal notice in the Federal Register on September 30, 2022, that it encouraged comments on the “Ban the Box” change and such comments would be accepted until October 31, 2022. Final rules are still pending.

Outside the federal government, Delaware Gov. John Carney (D) signed Senate Bill 13 into law on October 21, 2022, creating a “Ban the Box” policy for college applications. There are exceptions, however, for offenses such as stalking or sexual assault.

In Michigan, a private company, Grand Rapids-based Gluten Free Bros., has been hiring people with records for several years. The brothers who run the business were approached by Butterball Farms and Cascade Engineering, also of Grand Rapids, to join the “30-2-2” program, whose goal was to get 30 local companies to hire two returning citizens for at least two years.

Also in Michigan, Detroit and Kalamazoo require that contractors doing more than $25,000 in business with the cities must leave criminal history off their job application forms for those projects.

On the business networking website LinkedIn, formerly incarcerated and now successful director at the Center for Employment Opportunities in Los Angeles, Genevieve Rimer, offers a free learning program called “Job Seeking With a Criminal Record.” The class includes short video clips to help those with felony convictions gain confidence, write resumes and learn to transfer their skills to future jobs. Rimer’s online course is considered first of its kind to assist the formerly incarcerated in searching for employment post-release.

Sources: Bloomberg Law, LinkedIn, Nashville Tennessean, WXMI

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