Before and After Ban the Box: Who Complies with Anti-Discrimination Law?

Ban the Box (BTB) laws are an anti-discrimination policy intended to promote employment for persons with criminal records. However, research on law and organizations shows that firms often fail to comply with legal directives or engage in symbolic compliance that fails to alter day-to-day business practices. We consider whether BTB contributed to attitudinal or behavioral shifts among hiring managers and changes in job applications. We analyze a unique set of in-depth interviews (N = 30) and entry-level job applications (N = 305) collected from the same workplaces in 2008 and 2016, assessing the impact of state BTB legislation. We find: (1) that one in five organizations were noncompliant, with noncompliance twice as likely among employers who discriminated against applicants with criminal records pre-BTB and that widespread lack of knowledge and lack of enforcement of BTB appears to affect noncompliance; (2) organizations maintained considerable continuity in hiring practices and attitudes between 2008 and 2016, regardless of personnel changes and statewide implementation of BTB; and (3) post-BTB, strong warnings about criminal background checks at later stages of the hiring process emerged as an alternative source of gatekeeping. These findings contribute to the law and organizations literature by highlighting the importance of enforcement and limits of law for combating discrimination.

The Exception as the Rule: Negligent Hiring Liability, Structured Uncertainty, and the Rise of Criminal Background Checks in the United States

The threat of negligent hiring lawsuits is thought to play an important role in the widespread use of criminal background checks among US employers. This article examines the construction of negligent hiring within the trade literature of the human resources (HR) field using a qualitative content analysis. While courts tend to view criminal record checks as unnecessary for occupations that do not carry foreseeable risks, the article finds that the HR field has broadly endorsed criminal record checks as the default practice for screening job candidates. The article argues that this divergence stems from the structured uncertainty of compliance under the common law tort of negligent hiring, which shapes organizational behavior in ways that defy the substantive clarity of relevant case law.

The next Pandora’s Box of criminal background checks

The use of criminal background checks (CBCs) – requests for information on previous convictions during the employment recruitment process – is growing worldwide. This article seeks to explain the proliferation in CBCs by examining whether novel legislation introducing mandatory requests for some jobs also leads to an increase in requests for CBCs for jobs outside the scope of the law. The present research makes use of survey data collected from individuals requesting criminal records certificates before and after the introduction of new CBC regulation in Spain – EU Directive 93/2011/EU – which established the obligation to request a criminal record certificate covering sexual crimes for jobs involving frequent contact with children. The analysis detects only a small and unsustained growth in non-mandatory checks following introduction of the new law. However, the results suggest that the danger of the new legislation lies in employers requesting certificates with a higher level of disclosure than is required for the positions on which checks were made mandatory by the new law. In addition, the growth in non-mandatory CBCs observed during this period seems to be related not to the new legislation but to the emergence of tech companies, raising alarm regarding the role of novel forms of policy mobility and the new collaborative economy in limiting the re-entry of individuals with criminal records to the labour market.

Decision Points in Higher Education Administration: The Case of Criminal Background Checks

This hypothetical teaching case illustrates the complex issues that human resources (HR) professionals in higher education may face when making day-to-day employment decisions. This is particularly evident with recruiting and hiring—from applications to interviews, from offers to background checks. Here, an HR professional, with many years of experience but new to higher education, weighs the results of criminal background checks for two Associate Dean positions at a small private university in New York City. As part of the review and decision-making process, the HR professional has a series of meetings with the HR Director, the Dean, and in-house legal counsel. This case considers how HR professionals must navigate through sometimes competing institutional interests.

HOW STATES CHANGED REGULATORY REQUIREMENTS FOR ASSISTED LIVING STAFF SINCE 2003

In 2003, the Assisted Living Workgroup (ALW) published quality improvement recommendations for states’ regulations, including 26 regarding staffing/workforce. We reviewed states’ 2003 and current regulations to identify the presence of ALW standards. Over half of states’ regulations reflect 7 of the 26 staffing/workforce recommendations. Those most often added after 2003 concern criminal background checks, with a 58.8 percent increase in states that added federal background checks and use of criminal background checks to inform hiring. At least 40 states’ regulations reflect the ALW recommendations for administrator and direct care staff training. Very few states require staff performance evaluations (n=13), human resource policies to improve retention (n=1), or management practices to improve retention (0). The 10 ALW recommendations concerning staff who administer medications have been adopted by fewer than 23 states. These findings can inform future policy analysis and research on staffing/workforce in assisted living communities.

Defensible decisions

Purpose Employers using criminal background checks to make hiring determinations must carefully balance the need to protect themselves and their clients against legal mandates designed to protect the rights of individuals with criminal records. Yet, surprisingly little research examines this balancing act. The purpose of this paper is to examine how one large agency, the New York Department of Health (DOH), navigates a myriad of mandates to convey and create legitimacy in compliance with complex legal mandates and contrasting interests. Design/methodology/approach Prior research on civil right legislation suggests that while companies may create regulations that appear to comply with such mandates, their actual practice does not always comply with their own rules (Dobbin et al., 1988). Therefore, this study addresses two key questions: do the DOH policies appear to comply with the relevant New York State law and does the DOH effectively implement the policies in a way that upholds New York State law. Specifically, this study estimates probit models on a sample of over 7,000 potential employees with criminal records to determine compliance with the criteria established by law and policy. Findings Findings show that the variables indicated by law/regulations such as offense severity and time since conviction work in the intended direction. Using only these criteria the models are able to correctly predict clearance decisions approximately of the time and that extra-legal factors such as race and gender do not further influence final determinations. Practical implications These findings have practical implications for employers as they show that it is possible for employers to design formal rules that navigate this complex landscape while still opening up employment opportunities for individuals with criminal records. Originality/value This is important as many employers either utilize criminal background checks without regulation or are fearful of embarking on efforts to meet regulations such as those promulgated by the EEOC. This research is the first of its kind to actually document and explore the ability of a large employer to conduct socially responsible criminal history background checks.

Criminal Records, Positive Credentials and Recidivism: Incorporating Evidence of Rehabilitation Into Criminal Background Check Employment Decisions

Decision makers increasingly incorporate “evidence of rehabilitation” into criminal background checks. Positive credentials can decrease criminal record stigma and improve employment outcomes, but we lack research on whether rehabilitative factors used in such assessments are correlated with recidivism. The current study examines more than 1,000 state-mandated criminal background checks in the rapidly growing health care sector. Everyone in the sample received an initial denial and requested reconsideration by submitting evidence of rehabilitation. The findings indicate prior employer recommendations and program completion are positively correlated with clearance to work, but conditional on contesting in the first place, none of the evidence of rehabilitation factors are negatively correlated with recidivism. Persistently pursuing an employment opportunity through a contestation process may, in itself, signal rehabilitation and lower risk.