Limits on criminal background checks in employment applications

On Wednesday, Nebraska Governor Dave Heineman (R) signed a bill that bars employers from asking prospective employees if they have a criminal record. The prohibition is a provision in a law designed to reduce prison overcrowding. Nebraska is the 11th state to pass such a law.

Last month, in March, 2014,the City of Louisville passed a similar city ordinance limiting the the use of a prior criminal conviction as a screening question for many city jobs, and for venders doing business with the city.

Louisville Metro Ordinance No. 46-2014, approved 3-25-2014, Metro Code § 112.30(B), provides in part:

(1) Except as otherwise provided by state and federal law, the City shall not inquire about an applicant's conviction history until after it has been determined that the applicant is otherwise qualified for the position. City job applications shall not contain a "box" or inquiry regarding an applicant's prior convictions and applicants shall not be required to check or otherwise fill in a "box" or inquiry regarding an applicant's prior criminal conviction(s).

(2) If an applicant reaches the final stages of consideration for hire, the City shall notify the applicant that a criminal background check will may be conducted, at which time the applicant will be given an opportunity to inform Louisville Metro of any criminal background history that the applicant may have.

(3) In making a determination concerning a previous criminal conviction, the City shall consider the following factors:

(a) The nature of the crime and its relationship to the job for which the person has applied;

(b) The information pertaining to the degree of rehabilitation of the convicted person;

(c) The time elapsed since the conviction or release;

(d) Any information produced by the person, or produced on their behalf, in regard to their rehabilitation and good conduct;

(e) The age of the person at the time of occurrence of the criminal offense or offenses;

(f) The gravity of the offense(s);

(g) The probation or parole status of the applicant; and

(h) The public policy of the City, as expressed in this section, to encourage the employment of persons previously convicted of one or more criminal offenses.

Code § 112.30(D)(1) applies to venders doing business with the city:

Vendors who apply for business with the City must follow the practice that initial vendor employment applications not contain a "box" or a question of inquiry on the initial application regarding an applicant's prior criminal history and applicants shall not be required to check or otherwise fill in a "box" or respond to an inquiry regarding an applicant's prior criminal history on the vendor's initial employment application, unless as otherwise provided by or required by state and federal law.

EEOC has previously (4/25/2012 )issued Enforcement Guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964.

In the early 2000s, grassroots organizers in San Francisco and Boston began urging local governments to remove questions about convictions from job applications so that people can be judged first on their qualifications.

The National Employment Law Project (NELP) is a champion of this "ban the box" campaign. The "box" refers to a check box on any initial employment application that asks about the applicant's criminal convictions. It is also a project of Legal Services for Prisoners with Children (LSPC), "All of Us or None."

The NELP website states, "Conservative estimates indicate that roughly 70 million people in the United States have some sort of criminal record, and nearly 700,000 people return to our communities from incarceration each year. Supporting the employment opportunities of people with records creates safe communities, reduces childhood poverty, and strengthens families."