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January 13, 2016  
 
Palm Beach County Jumps on the Bandwagon
and "Bans the Box"
 
Palm Beach County joins a growing number of Florida counties and cities including, Miami-Dade, Tallahassee, Tampa, St. Petersburg and Jacksonville in "Banning the Box," by its recent decision to remove a box from municipal employment applications asking a job applicant to check the box if the applicant has a criminal conviction.

"Ban the Box" is a national movement focused on allowing employers to conduct criminal background checks only after an applicant has been determined to be qualified for a position. The reason is that many employers automatically refuse to even consider an otherwise qualified applicant solely because of the existence of any criminal conviction, no matter how slight the offense. Examples include persons who served time for petty non-violent drug offenses (some of which are no longer considered illegal in a number of states). It is also widely believed that discriminating against such persons disproportionately affects certain protected classes of people in our society who experience an even more difficult time improving their socio-economic status when they find it almost impossible to be considered for a job. By banning the box on the application form, it gives applicants a fair chance that they might not otherwise have to obtain gainful employment, support themselves and their families, avoid the need for government assistance, reduce recidivism1, reduce crime, pay taxes, etc.

Gaining the support of President Barack Obama, the Department of Justice and the Equal Employment Opportunity Commission, among others, proponents of the movement report that Ban the Box strengthens the economy and promotes fairness and equal opportunity by, among other things, reducing racial and ethnic disparities in employment and hiring practices.2

Opponents of the Ban the Box movement say that it will not eliminate discrimination but, instead, will predispose more employers to conduct criminal background checks because they can no longer ask conviction questions upfront.3 Some employers remain fearful of exposure to claims for negligent hiring if they end up hiring employees with criminal convictions who commit wrongful acts on the job and others believe that the movement will make it easier to be sued for discrimination by applicants under still another statute.

Currently, there are more than one hundred cities and counties across twenty-eight states that have adopted some form of law that Ban's the Box.5 The Florida Legislature is currently considering state-wide legislation that may impact both public and private employers.

With statistics showing that roughly 70 million people in the United States have criminal convictions, it is imperative that employers understand the law, know when to ask about criminal convictions and utilize the right tools to ensure hiring practices remain efficient and effective.

Contact a member of the Schwarzberg & Associates Employment Law Compliance and Defense Practice Group: Steve Schwarzberg, Esq. or Lisa Kohring, Esq. at 561-659-3300 for more information on determining what you need to know about the Ban the Box movement, safeguarding your company against negligent hiring claims, revising your hiring applications, policies and procedures and educating and training human resources personnel.

1Recently, the U.S. Sentencing Commission voted unanimously to reduce sentencing guidelines for some federal drug trafficking crimes and, as a result, between October 30 and November 2, 2015, more than 6,000 prisoners were released from the Bureau of Prison's custody and are now seeking employment.
2Soumya Karlamangla, LA leaders ask employers not to reject people with Criminal Records, LA Times, June 6, 2014, available at http://www.latimes.com/local/lanow/la-me-ln-ban-the-box-20140606-story.html.
3Eli Lehrer, Ban the Box goes too far…and not far enough (Dec.12, 2013), Huff. Post, http://www.huffingtonpost.com/eli-lehrer/ban-the-box-goes-too-fara_b_4508127.html.
4Mickey Matran, HR Outsourcing News Roundup: Ban-the-Box Edition, http://www.hrsolutions.net/blog/hr-outsourcing-news-roundup-ban-the-box-edition/#.VCOO6l4opKM.
5Ban the Box Research Study, National Employment Law Project, Research Finds Fair Chance Policies Support Families and Communities, Increase Public Safety, http://www.nelp.org/page/-/SCLP/2014/Guides/NELP_Research_Factsheet.pdf?nocdn=1.
 
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