Liability Risk

What ‘Ban the Box’ Really Means for Employers

A majority of states bar employers from inquiring about convictions on job applications. But compliance without caution can have dire consequences.
By: | August 30, 2018 • 7 min read

Employers are facing a growing dilemma in the hiring process.

Under ‘Ban the Box’ legislation introduced across 31 states, they are now required to remove the question from their application form that asks candidates if they have been convicted of a crime. Advocates of the law believe it enables organizations to focus on relevant qualifications and gives applicants a fair chance to showcase their talents at the start of the recruitment process.

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However, if an employer hires an employee with a conviction who goes on to commit a crime of a similar nature, courts may rule they are liable for that individual’s actions.

The National Federation of Independent Businesses, for one, has argued that ‘Ban the Box’ “unduly suppresses relevant criminal record information” about prospective employees, without which employers can’t protect themselves from loss or ensure the safety of their employees, customers or the public when making hiring decisions.

High-profile cases of ex-offenders committing further crimes at work have only exacerbated the problem. To make matters worse, ‘Ban the Box’ laws vary from state to state, meaning that employers who operate in multiple jurisdictions have to negotiate an even greater legal minefield.

“If an employer hires a candidate with a conviction who then commits a similar crime in the workplace, it could be argued that they were negligent because they hired that person,” said Tom Hams, Aon’s employment practice liability insurance practice leader.

Cody Bengtson, staff consultant, Gallagher Human Resources & Compensation Consulting

“So the onus is on the employer to ensure that they have done their homework on a candidate’s background.”

“ ‘Ban the Box’ gives an applicant with a conviction the chance to get in front of an employer and sell themselves and to explain the circumstances that resulted in them getting that initial conviction,” said Robert Hale, a partner at Goodwin Procter LLP.

“It also gives the employer the opportunity to consider their application in the wider context, taking into account the positive qualities they may bring rather than being influenced solely by their conviction.”

‘Ban the Box’ Movement

Laura Kerekes, chief knowledge officer at ThinkHR, said ‘Ban the Box,’ which was first deployed in the public sector several years ago, has gained momentum in private industry in recent years, targeting hiring practices that exclude applicants based on criminal records.

She said the checkbox question asking applicants to indicate whether or not they have been arrested and/or convicted of a felony discourages qualified candidates from applying.

“By removing the checkbox, qualified applicants are given a fairer chance to move further into the selection process before their conviction records are exposed,” she said.

“By encouraging more qualified applicants to apply for open positions by banning the box, hiring managers have a wider applicant pool and, in theory, better candidates, so that jobs can be filled quicker and workplaces benefit from skilled talent given a fair chance in the process.”

However, Kerekes added that recent studies have indicated ‘Ban the Box’ may be causing more harm than good. In one case, she said employers found other reasons to disqualify applicants who might have criminal records by requiring higher education standards than those required for the role.

“Eliminating the box means that once the applicant’s criminal history becomes known late in the hiring process, the employer must take extra care to evaluate and document the reasons for either hiring the applicant or disqualifying them for further consideration,” she said.

“Most employers already understand that rejecting an applicant from further consideration because of a past criminal history could be a legal problem and is just not good HR practice.”

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Robert Tice, an attorney with Collins Einhorn Farrell, said employers should consider the nature of the crime committed, how long ago it was and how the individual has responded to redeem themselves.

They should also define the relevant job specifications for the role and train their hiring managers to ask the right questions, he said.

“If the conviction is relevant to the type of employment that individual is going to be required to do, then the employer is entitled to obtain that information,” he said.

Case-by-Case Basis

Hale said the Equal Employment Opportunity Commission states that to disqualify an applicant, their prior conviction should be related to the role and each applicant needs to be considered individually.

Employers are also only allowed to ask candidates about their history dating back no more than seven years under the Fair Credit Reporting Act. They are typically not allowed to ask about arrests either, Hale said.

“Employers have a legal duty to their employees to provide a safe workplace, therefore eliminating background checks for convenience may not be the best course of action.” — Cody Bengtson, staff consultant, Gallagher Human Resources & Compensation Consulting

“Employers should be asking job-related questions at the interview,” he said. “But that shouldn’t preclude them from asking questions about convictions if they are relevant.”

One trap many organizations fall into is adhering to ‘Ban the Box’ but not carrying out a background check on a candidate’s criminal record after the initial application, or not asking them the question at the first interview because they are worried about potential liability, said Cody Bengtson, staff consultant at Gallagher Human Resources & Compensation Consulting.

That is particularly relevant when hiring for sensitive positions such as those involving money handling if it turns out the applicant has been convicted for fraud or theft, or for positions in childcare if the applicant has committed offenses against minors.

“Employers have a legal duty to their employees to provide a safe workplace, therefore eliminating background checks for convenience may not be the best course of action,” Bengtson said.

“If a candidate was previously convicted of assault or battery, the employer has to make a judgment call if the candidate’s background could affect any other employees. It’s a harder decision and employers will have to turn to case law to find their answers.”

Source: ThinkHR

Tightening the Net

Beth Goldberg, chief underwriting officer, financial lines, Starr Companies, said that laws such as California’s Assembly Bill No.1008 take ‘Ban the Box’ a step further, requiring all employers in the state with five or more employees to complete any inquiries into an applicant’s criminal history after a conditional offer.

“If an employer wants to deny an application for a position solely or in part because of conviction history, the company must take a number of steps to be compliant with AB 1008,” she said.

“This is where thorough training comes in for those individuals handling the HR role or company hiring managers to ensure awareness and compliance specifically with the company’s job application, interview guidelines and procedures for criminal background checks.”

Karl Lindegren, a partner at Fisher and Phillips LLP, said employers should work with their brokers to ensure they have the right coverage in place to protect them.

But they also need to understand the limits and employment acts that are excluded to mitigate against negligent hiring claims, he said.

“Talk to your broker or carrier to discuss your needs and to understand what coverage you have, and what is excluded,” he said.

Already Happening in Court

A recent decision by California’s Supreme Court ruled that Liberty Surplus Insurance must pick up the defense costs of Ledesma & Meyer Construction Company after it was sued for negligently hiring a twice-convicted registered sex offender who later raped a 13-year-old girl at a school construction site.

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L&M hired Darold Hecht in 2003 as an assistant superintendent assigned to a San Bernardino Unified School District construction site. In 2010, a 13-year-old student sued L&M in State Court alleging Hecht had sexually abused her. The allegations included the negligent hiring, retention and supervision of Hecht.

The student was awarded $3.2 million from L&M, which covered the school district’s legal costs under the contract. Liberty subsequently filed a Federal lawsuit, arguing that it wasn’t obliged to cover the district’s costs as an accident under the policy.

However, the California Supreme Court ruled that Hecht’s actions didn’t preclude potential coverage for L&M.

The court stated: “Absent an applicable exclusion, employers may legitimately expect coverage for such claims under comprehensive general liability insurance policies, just as they do for other claims of negligence.” &

Alex Wright is a U.K.-based business journalist, who previously was deputy business editor at The Royal Gazette in Bermuda. You can reach him at [email protected]

More from Risk & Insurance

More from Risk & Insurance

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]