In a letter this past week, nearly 200 interest groups urged President Obama to issue an executive order “banning the box” for federal contractors and to implement other “fair chance” hiring reforms protecting ex-offenders. “Ban the box” refers to a movement that has swept across state and local legislatures in recent years requiring contractors (and employers more broadly) to remove the check box from job applications asking whether prospective employees have a criminal history.
To date, several state and local jurisdictions have “banned the box” for contractors, including California (for construction contractors), Compton (CA), Richmond (CA), Hartford (CT), New Haven (CT), Indianapolis (IN), Louisville (KY), Boston (MA), Cambridge (MA), Worcester, (MA), Detroit (MI), Atlantic City (NJ), New York City (NY) (for human services contractors), Pittsburgh (PA), and Syracuse (NY). Delaware and Madison (WI) have “encouraged” the same.
In addition, six states—Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island—and twelve localities— Baltimore (MD), Buffalo (NY), Chicago (IL), Columbia (MO), D.C., Montgomery County (MD), Newark (NJ), Philadelphia (PA), Prince George’s County (MD), Rochester (NY), Seattle (WA), and San Francisco (CA)—have “banned the box” for private employers (either expressly or implicitly covering government contractors).
At the federal level, the Office of Federal Contract Compliance Programs (OFCCP) also has issued a directive on criminal background checks. The Directive cautions contractors that the consideration of criminal records in hiring or other personnel decisions may have a disparate impact on racial and ethnic minorities in violation of Title VII of the Civil Rights Act of 1964.
If President Obama issues an executive order that “bans the box” for federal contractors, the executive action will add to an already growing patchwork of laws and orders restricting criminal background checks on job applicants and employees of government contractors. Stay tuned to see what the President decides . . .