Keeping track of the laws impacting the hiring process can be a challenge for any employer. In addition to federal regulations, like the Fair Credit Reporting Act (FCRA), state and even local laws can often impose legal requirements on employers attempting to hire or perform background checks.
The ban the box movement is quickly building momentum, with several state and local jurisdictions enacting laws that often place restrictions on when, or if, an employer can inquire about their employees’ or applicants’ criminal histories. For example, the City of Columbia, South Carolina has enacted its version of a “ban the box” law that went into effect in August 2019.
Some highlights of the recently enacted ban the box law in Columbia are:
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- An employer can only conduct a background check on an applicant if it has made a “good faith determination” that background information is relevant to the position or if a background check is required by law.
- If a job requires a background check, the job posting and description may need to contain specific language regarding conviction history.
Job applications cannot ask about an applicant’s conviction history.
- Some criminal records may not be used or accessed for an employment background check. Restricted records include arrests without conviction; sealed, dismissed or expunged convictions; misdemeanors where jail time cannot be imposed; and infraction records.
- An employer may request an applicant’s criminal history only after the applicant has received a conditional job offer.
- An employer must provide an applicant a “notice of rights” under the law, a conditional offer letter, and a request for authorization to conduct a background check, if so required, before a criminal history check.
- If an employer is considering taking adverse action against an applicant based on conviction history, the employer must provide the applicant with a pre-adverse action notice with language prescribed by the law and the criminal history report. The employer must also conduct an individualized assessment of the applicant.
- If an employer takes adverse action against an applicant based on conviction history, they must inform the applicant of the decision and eligibility for other positions.
To read the full ordinance, click here: Ordinance No.: 2019-022
This latest law demonstrates that even local laws can have an impact on an employer’s hiring process. Verified Credentials will continue to monitor any significant changes in ban the box laws. If you have any questions about how Columbia’s ban the box law may impact your hiring processes, you may want to speak to your legal counsel.
