Vermont is the seventh state in the Union to ban private employers from using The Box. The Box refers to the checkmark box on an application for employment which asks an applicant to disclose whether she has ever been convicted of a crime. Ban the box laws fall into three categories: Ban the Box Standard, Ban the Box Plus, and Ban the Box Ultra.
Ban the Box Standard simply prohibits an employer from asking in its employment application whether the applicant has any sort of criminal history. The employer must wait until later in the hiring process, sometimes during the interview, sometimes after a conditional offer of employment, before making an inquiry about a person’s criminal history. Even this most basic Ban the Box law prohibits employers from running criminal background checks through third parties, such as ESS, until later in the hiring process.
Ban the Box Plus usually imposes on the employer the additional requirement of engaging in an analysis to determine three things: first, does the criminal history at issue directly relate to the job; second, is there mitigating evidence surrounding the commission of the crime that should prompt reasonable people to conclude that the situation is not so bad as it might seem at first glance; and third, since the conviction for the crime, is there evidence that the ex-offender has rehabilitated himself and can now safely reenter productive society?
Ban the Box Ultra imposes yet additional obligations on the employer, and it arms the applicant with new legal rights. The employer will be required to provide a written statement to the applicant explaining why the employer believes the prior criminal conviction disqualifies the applicant from employment, and the applicant will have the right to appeal to a governmental human rights commission or to file an independent legal suit against the employer for redress and reversal of the employer’s decision. In some cases, civil penalties can be assessed and legal damages awarded against the employer.
All three of these levels of ban the box usually have exemptions for those employers who are employing individuals in certain safety-sensitive jobs, such as in the healthcare industry, or in jobs where federal or state law prohibits the employer from employing an ex-offender.
Vermont’s law falls somewhere on the spectrum between Ban the Box Standard and Ban the Box Plus. In Vermont, employers may not inquire about an applicant’s criminal history on the application form, but may do so during an interview of the applicant, or if the employer has determined that the applicant is otherwise qualified for the position at issue. There is an exception for those employees applying for positions which mandate that ex-offenders not to be employed in such positions.
The Vermont Ban the Box act also vests the applicant with the right to explain the information and circumstances surrounding her conviction, as well as the right to provide in the evidence of post-conviction rehabilitation. The law does not require the employer to provide any sort of written explanation of its ultimate decision, and it does not vest the applicant with the right to appeal the employer’s decision. If an employer violates this Vermont law, however, it can be subject to a civil penalty of up to $100 per violation.
As previously mentioned, Vermont is now the seventh state to ban private employers from using The Box in one fashion or another; the other six are Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island. The District of Columbia also bans the box for private employers. On top of this, as of the writing of the blog, fourteen cities and counties have enacted some version of banning the box law applicable to private employers. Most of these laws only apply to employers who employ individuals within the jurisdiction of the state or municipality enacting the law. Thus, for example, if you do not employ any individuals in the state of Vermont, the Vermont law has no relevance to you. Likewise, even if a Vermont resident seeks to work for you, if you are not employing individuals within Vermont, you can ignore the law.
But the use of online-based application systems could spell trouble for multi-jurisdictional employers. If any of these multi-jurisdictional employers employ individuals in any of these twenty-one jurisdictions that ban private employers from using The Box, the employer will be subject to legal sanctions for requiring an applicant in a protected jurisdiction to log onto a web-based applicant tracking system and self-disclose criminal history. As ban the box continues to advance and expand, the practical impact of this patchwork quilt of laws is to force employers to cease using The Box on their online applications.
This publication is provided only for educational purposes; it should not be relied upon as legal advice, and it should not be used, in whole or in part, as a basis for establishing employment practices or policies, nor should it be used for resolving disputes or managing risk. Every reader’s circumstances are unique and legal advice should be obtained only from a lawyer with whom the reader has established an attorney-client relationship. Copyright 2016 ©Employment Screening Services, Inc. All material contained within this publication is protected by copyright law and may not be reproduced without the express written consent of ESS.
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