This presentation summarizes state and local "ban the box" laws that restrict when employers can ask about an applicant's criminal history. It discusses the varying requirements for when criminal history inquiries are allowed, applicable time limits, exceptions, and best practices for compliance. The presentation was given by attorneys from Seyfarth Shaw LLP to provide employers with an overview of the complex patchwork of laws in this area.

1. Ban the Box –
How to Comply
With a Myriad of
State and Local
Laws
Presenters:
Pamela Q. Devata
Paul H. Kehoe
Seyfarth Shaw LLP
November 12, 2015

2. ©2014 Seyfarth Shaw LLP
Disclaimer
• This presentation has been prepared by Seyfarth Shaw LLP for
informational purposes only and is not legal advice. This information is not
intended to create, and receipt of it does not constitute, an attorney-client
relationship. Participants should not act upon this information without
seeking professional counsel. The material discussed during this webinar
should not be construed as legal advice or a legal opinion on any specific
facts or circumstances. The content is intended for general information
purposes only, and you are urged to consult a lawyer concerning your own
situation and any specific legal questions you may have. Any tax
information or written tax advice contained here in (including any
attachments) is not intended to be and cannot be used by any taxpayer for
the purpose of avoiding tax penalties that may be imposed on the
taxpayer.
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3. ©2014 Seyfarth Shaw LLP
Presenters
• Pamela Devata, Seyfarth Shaw LLP
• Paul Kehoe, Seyfarth Shaw LLP

4. ©2014 Seyfarth Shaw LLP
Agenda
• Ban The Box
• EEOC’s Criminal History Guidance & Compliance
• State Level Statutes
• Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon (Jan. 2016), Rhode
Island, Washington, DC
• Local Ordinances
• San Francisco, CA
• Chicago, IL
• Baltimore, Montgomery County & Prince Georges County, MD
• Columbia, MO
• Buffalo, New York City & Rochester, NY
• Philadelphia, PA
• Seattle, WA
• Best Practices to Mitigate Risk
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5. ©2014 Seyfarth Shaw LLP
EEOC’s Criminal History Guidance &
Compliance
• No Bright Line Rules
• “We don’t hire any felons for any positions”
• 3 factor test based on case: Green v. Missouri Pacific RR
• Nature and gravity of the offense
• Nature of the job
• Time elapsed since the conviction or completion of sentence
• When to ask?
• Consider removing from application
• Ban the box – Best Practice
• Only request the information that is necessary to making the
employment decision
• Individualized Assessment
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6. ©2014 Seyfarth Shaw LLP
Individualized Assessment
• Individualized assessment
• EEOC recommends an “individualized assessment” of applicants
• Though not “required,” employers will need to evaluate if there are any criminal
offenses that have a “demonstrably tight nexus to the position in question”
such that an individualized assessment may be circumvented
• Evidence an employer should review:
• facts or circumstances surrounding the offense or conduct;
• number of offenses for which the individual was convicted;
• older age at the time of conviction, or release from prison;
• evidence that the individual performed the same type of work, post conviction, without
any known incidents of criminal conduct;
• length and consistency of employment before and after offense;
• rehabilitation efforts;
• character references; and
• whether individual is bonded under a federal, state, or local bonding program
• Large change for employers
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7. ©2014 Seyfarth Shaw LLP
Hawaii
• When to ask?
• After conditional offer
• Time Limitation?
• 10 years
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to
consider or prohibits an employer from hiring an individual with
certain criminal records
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8. ©2014 Seyfarth Shaw LLP
Illinois
• When to ask?
• After applicant selected for an initial interview or conditional offer
• Number of employees – 15
• Time Limitation?
• None
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to
consider or prohibits an employer from hiring an individual with
certain criminal records
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9. ©2014 Seyfarth Shaw LLP
Massachusetts
• When to ask?
• After initial written application
• BUT, MCAD interprets this to mean after the first interview
• Time Limitation?
• Misdemeanors over 5 years old, unless convicted of another offense within 5
years
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to consider or prohibits an
employer from hiring an individual with certain criminal records
• Other?
• No inquiries regarding first convictions for drunkenness, simple assault, speeding,
minor traffic violations, disturbing the peace
• Prior arrests, court appearances and adjudications in all cases of delinquency or
as a child in need of services which did not result in a complaint transferred to the
superior court for criminal prosecution
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10. ©2014 Seyfarth Shaw LLP
Minnesota
• When to ask?
• After applicant selected for an initial interview or conditional offer
• Number of employees – All private employers
• Time Limitation?
• None
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to consider or
prohibits an employer from hiring an individual with certain criminal
records
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11. ©2014 Seyfarth Shaw LLP
New Jersey
• When to ask?
• After the first interview
• Number of employees – 15
• Time Limitation?
• Depends on the crime
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to consider or
prohibits an employer from hiring an individual with certain criminal
records
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12. ©2014 Seyfarth Shaw LLP
Oregon (Jan. 2016)
• When to ask?
• After the first interview
• Number of employees – All private employers
• Time Limitation?
• None
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to consider or
prohibits an employer from hiring an individual with certain criminal
records
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13. ©2014 Seyfarth Shaw LLP
Rhode Island
• When to ask?
• During the first interview or thereafter
• Number of employees – 4
• Time Limitation?
• None
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to consider or
prohibits an employer from hiring an individual with certain criminal
records
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14. ©2014 Seyfarth Shaw LLP
Washington, D.C.
• When to ask?
• After conditional offer
• Number of employees - 10
• Time Limitation?
• None
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to consider or
prohibits an employer from hiring an individual with certain criminal
records
• Other?
• If applicant requests explanation, employer must provide all records and
statement of denial for each factor listed in ordinance within 30 days
• Sliding scale for fines depending on size of employer
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15. ©2014 Seyfarth Shaw LLP
San Francisco, CA
• When to ask?
• After the first interview or conditional offer
• Number of employees – 20, regardless of location
• Time Limitation? 7 years
• No inquiries about:
• Participation in or completion of a diversion or deferral of a judgment program
• A conviction judicially dismissed, expunged, voided, invalidated, or otherwise
rendered inoperative
• A conviction or any other determination or adjudication in the juvenile justice
system
• A conviction over seven years old from the date of sentencing
• Notice requirements of reason for prospective adverse action, 7 days response
period prior to taking adverse action & OLSE form
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16. ©2014 Seyfarth Shaw LLP
Chicago, IL
• When to ask?
• After applicant selected for an initial interview and notified as such or
conditional offer
• Number of employees – All private employers
• Time Limitation?
• None
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to consider or
prohibits an employer from hiring an individual with certain criminal
records
• Other?
• Individualized assessments – 9 factors
• Identify specific information on adverse action letter
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17. ©2014 Seyfarth Shaw LLP
Baltimore, MD
• When to ask?
• After conditional offer
• Number of employees – 10
• Time Limitation?
• None
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to
consider or prohibits an employer from hiring an individual with
certain criminal records
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18. ©2014 Seyfarth Shaw LLP
Maryland - Montgomery and Prince
George’s Counties
• When to ask?
• After initial interview
• Number of employees – 15 (Montgomery); 25 (Prince George’s)
• Time Limitation?
• None
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to consider or
prohibits an employer from hiring an individual with certain criminal
records
• Other?
• Modify pre-adverse and adverse action letters to include reference to
specific items which form the basis of the decision
• Seven-day waiting period before adverse action
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19. ©2014 Seyfarth Shaw LLP
Columbia, MO
• When to ask?
• After conditional offer
• Number of employees - All private employers
• Time Limitation?
• None
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to consider or
prohibits an employer from hiring an individual with certain criminal
records
• Other?
• Individualized assessment – while not specifically required, decision
must be made on all available information (the Green factors and more)
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20. ©2014 Seyfarth Shaw LLP
Buffalo, NY
• When to ask?
• Any time during the first interview or thereafter
• Number of employees – 15
• Time Limitation?
• None
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to consider or
prohibits an employer from hiring an individual with certain criminal
records
• Must consider NY Article 23-A
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21. ©2014 Seyfarth Shaw LLP
New York City
• When to ask?
• After conditional offer
• Number of employees – 4
• Time Limitation?
• None
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to consider or prohibits an
employer from hiring an individual with certain criminal records
• Other?
• Detailed notice procedure, including a copy of the inquiry, conducting and
providing to the applicant the Article 23-A analysis in a satisfactory form, and
holding the position open for three business days
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22. ©2014 Seyfarth Shaw LLP
Rochester, NY
• When to ask?
• After the first interview or conditional offer
• Number of employees – 4
• Time Limitation?
• None
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to consider or
prohibits an employer from hiring an individual with certain criminal
records
• Must consider NY Article 23-A
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23. ©2014 Seyfarth Shaw LLP
Philadelphia, PA
• When to ask?
• After the first interview
• Number of employees - 10
• Time Limitation?
• None
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to consider or
prohibits an employer from hiring an individual with certain criminal
records
• Other?
• Can ask about pending arrests
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24. ©2014 Seyfarth Shaw LLP
Seattle, WA
• When to ask?
• After the employer has completed an initial screening of applications to
eliminate unqualified applicants
• Number of employees – All private employers
• Time Limitation?
• 10 years per Washington law
• Carve Out For Federal & State Laws?
• Yes; Where a state or federal law requires an employer to consider or
prohibits an employer from hiring an individual with certain criminal records
• Other?
• Applicants may exclude a criminal conviction that has been the subject of a
certificate of rehabilitation or other equivalent procedure based on a finding
of the rehabilitation
• Must wait 2 business days after informing applicant of potential adverse
employment action based on criminal history
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25. ©2014 Seyfarth Shaw LLP
Do’s and Don’ts
• Do: Ask after conditional offer unless federal or state law requirement
• Don’t: Ask about arrests which did not result in a conviction
• Don’t: Ask about sealed, expunged, restricted, juvenile or pardoned
records
• Do: Conduct a job-relatedness inquiry
• Do: Consider centralized background screening role
• Do: Review policies, applications and procedures
• Do: Follow FCRA and specific adverse action requirements
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26. ©2014 Seyfarth Shaw LLP
Questions?
Contact Information:
Pamela Q. Devata
• SEYFARTH SHAW LLP
• 131 South Dearborn Street, Suite 2400
• Chicago, Illinois 60603
• (312) 460-5882
• pdevata@seyfarth.com
Paul H. Kehoe
• SEYFARTH SHAW LLP
• 975 F. Street, N.W.
• Washington, DC 20004
• (202) 828-5375
• phkehoe@seyfarth.com
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