It appears that job applications to work for the City of Birmingham will no longer require applicants to disclose criminal convictions.  Yesterday, Birmingham Mayor William Bell issued an executive order which modified the City’s hiring practices and adopted the “Ban the Box” movement.  Here’s a link to the Al.com article. Article

Most employment applications ask if the applicant has been convicted of a crime, and contain a “box” to check “yes” or “no.”  The “Ban the Box” movement seeks to remove that “box,” and other conviction inquiries, from job applications.  In concept, the “Ban the Box” requirement prevents employers from automatically weeding-out employees with a criminal history, which gives applicants a better chance at a job, and decreases the chances that they will commit another crime.

Mayor Bell’s executive order follows an executive order issued by President Obama on November 2, 2015.  In that order, President Obama directed that the “box” should be removed from applications for federal employment.  Here’s a link discussing that action and providing more information on the “Ban the Box” movement.  Obama Article

One of the central tenets of “Ban the Box” is that inquiries about criminal convictions should occur “later” in the hiring process.  Unfortunately, there is not a lot of clarity on when such inquiries should be permitted.  Can they be made before a job offer?  Or after?

Mayor Bell’s order does not provide much insight.  In fact, it adopts a broad policy to “implement hiring policies and procedures intended to encourage the full participation of motivated and qualified persons with criminal histories in the workforce, reduce recidivism and ensure public safety.”  It also “prohibit[s] the use of a criminal record as an automatic bar to employment” and requires that applicants receive an opportunity to “contest the content and relevance of a criminal conviction”.

Importantly, the executive orders from Mayor Bell and President Obama apply only to applications to work for the City of Birmingham or the federal government.  Private employers can still use job applications that ask about criminal convictions.

Nevertheless, there is a growing movement for Congress to pass “Ban the Box” legislation which would, at a minimum, apply to federal contractors.  Similarly, the City of New York has already imposed such legislation on private employers.

The devil is in the details with such legislation.  If Birmingham’s executive order was used as a starting point for legislation, the burdens on employers could be onerous.  What happens if an employer uses a criminal record as an “automatic bar to employment,” even in the post-offer stage?  How extensive must the opportunity be to allow applicants to “contest the content and relevance of a criminal conviction”?   What is the penalty for violations?

Employers should keep an eye on the “Ban the Box” movement and work to ensure that any new regulations do not impose requirements that are unworkable in the private sector.