Bed Bath & Beyond Bans the Box: Criminal History No Longer Factor in Hiring
Bed Bath & Beyond Inc. has agreed to stop automatically rejecting job applicants with criminal records and instead evaluate individual situations when making hiring decisions. The retail company – which operates more than 1,400 stores in the U.S., with 62 in New York – reached a settlement with New York’s attorney general after an investigation into the home goods retailer found they were automatically disqualifying job applicants with felony convictions.
Under New York State law, employers must conduct an individualized evaluation of applicants’ criminal records, by considering a number of factors, including the nature and gravity of an applicant’s criminal conviction and its bearing, if any, on any specific responsibilities of the job sought, the time that elapsed since the conviction, the age of the applicant at the time when the offense was committed; and evidence of rehabilitation.
According to reports, an investigation into the retail chain was launched because a Bed Bath & Beyond human resources manager told applicants at a job fair the company would not hire anyone with a past felony conviction.
Under the settlement and the requirements of state law, Bed Bath & Beyond will modify its policies to be compliant with state law requirements, conduct training of all of its employees on these new policies, preserve records of its hiring decisions and any complaints related to criminal history discrimination, and provide periodic reports to the Attorney General’s Civil Rights Bureau to ensure compliance with the law.
Bed Bath & Beyond will pay a total of $125,000 in relief, of which $40,000 will be awarded as restitution to individuals who were unlawfully denied employment with the company, and $15,000 will be paid to each of the following organizations: the Center for Employment Opportunities, the Osborne Association, and the Doe Fund, all of which provide job training and placement services for individuals with criminal records.
Bed Bath & Beyond is not the first retailer to announce plans to Ban the Box. In 2013, Target Corp. announced they would eliminate the box on employment applications that asks job seekers whether they have a criminal record.
The announcement from the country's second-largest retailer – Minnesota’s third-largest employer – came just months after Minnesota became the third state to extend Ban the Box to include private employers. The new law – which went into effect on January 1, 2014 – states that employers who are not exempted from the law many not:
- inquire into or consider or require disclosure of criminal record information until the applicant has been selected for an interview, or if there is not an interview, until a conditional job offer of employment has been extended to the applicant, and;
- use any form of employment application that seeks such criminal record information.
While the statute delays when most employers can seek such information, it does not impact those employers who are statutorily required to consider criminal history in hiring for particular types of employment such as child-care agencies and services that work with vulnerable adults.
The Star Tribune said since Target is required to remove the box on applications to comply with Minnesota law, it made sense to implement the policy nationwide, according to Jim Rowander, Target’s vice president and general counsel of employee and labor relations.
Ban the Box Legislation: An Update
In the United States, 12 states have embraced a Ban the Box policy, with four – Hawaii, Massachusetts, Minnesota and Rhode Island – extending it to private employers.
Proponents of the Ban the Box movement believe removing any inquiries into an applicant’s past until later in the hiring process ensure they will not be automatically excluded from the pool of potential hires. They also say that employment for ex-offenders is the key to the successful societal re-integration.
However, opponents argue that Ban the Box prevents employers from adequately screening applicants when questions about criminal history are not asked until very late in the process. Ban the Box has also resulted in a patchwork of laws that create inconsistencies and make it increasingly difficult to perform what most would consider even the most basic due diligence in the screening process. Companies with multiple locations may have different regulations depending on the Ban the Box legislation specific to that locale.
Our Ban the Box White Paper is a helpful tool for employers to understand the proper usages of criminal records in the screening process and mitigate the risk of negligent hiring and disparate-impact claims. As Ban the Box continues to sweep the nation, we continually update our White Paper to provide the most up-to-date information available. Get your copy now »
Some of the statewide Ban the Box legislation effective this year:
- California: Two new laws regulate permissible applicant inquiries in California. Senate Bill 530 – effective January 1 – amends California’s Labor Code to include an additional prohibition for public and private employers related to pre-employment inquiries. Effective July 1, 2014, AB 218 bars public sector employers from asking about criminal records on employment applications. The legislation stipulates law enforcement positions are exempted from the requirements, as are other positions that require a criminal background check by law. Other exemptions include: (1) if the applicant would be required to possess or use a firearm in the course of his or her employment; (2) if an individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation; (3) if the employer is prohibited by law from hiring an applicant who has been convicted of a crime.
- Delaware: On May 8, 2014, Delaware Governor Jack Markell signed HB 167 that forbids public employers from asking job candidates to check a box if they have a criminal record and asking about their credit history or score. The bill permits inquiries and consideration of criminal background after the conditional offer has been made. The bill specifies that once a background check is conducted an employer shall only consider felonies for 10 years from the completion of sentence, and misdemeanors for 5 years from the completion of sentence. Further, employers are required to consider several enumerated factors when deciding whether to revoke a conditional offer based on the results of a background check. Police forces, the Department of Corrections and other positions with a statutory mandate for background checks are excluded from these provisions. The bill also requires contractors with State agencies to employ similar policies when it is appropriate and does not conflict with other State or federal requirements.
- Minnesota: Governor Mark Dayton signed into law Senate File 523 to extend the states existing Ban the Box policy to include private employers. Effective January 1, the law prohibits employers from (1) inquiring into or consider or require disclosure of criminal record information until the applicant has been selected for an interview, or if there is not an interview, until a conditional job offer of employment has been extended to the applicant, and; (2) using any form of employment application that seeks such criminal record information. Exemptions include employers who are statutorily required to consider criminal history in hiring for particular types of employment such as child-care agencies and services that work with vulnerable adults. As mentioned above, following the statewide policy, Minneapolis-based retailer Target Corp. announced their plans to Ban the Box on employment applications.
- Nebraska: Nebraska was the 11th state in the U.S. to join the Ban the Box movement. Nebraska Governor Dave Heineman (R) signed LB 907 on April 14, 2014 that, among other things, prevents employers from inquiring about criminal history on initial job applications. The new law requires that employers cannot conduct a background check until the public employer has determined the applicant meets the minimum employment qualifications. This does not apply to any law enforcement agency, to any position for which a public employer is required by federal or state law to conduct a criminal history record information check, or to any position for which federal or state law specifically disqualifies an applicant with a criminal background. The law takes effect in July 2014.
- Rhode Island: The new legislation effective January 1 prohibits inquiries on employment applications regarding prior criminal convictions except when federal or state law mandates disqualification of a person from employment because of a prior conviction or specifically authorizes such inquiries. It applies to both public and private employers in Rhode Island employing four or more individuals, or any person acting directly or indirectly in the interest of an employer. The law amends section 28-5-7 of the State of Rhode Island General Laws entitled “Fair Employment Practices,” making it an “unlawful employment practice” for an employer to inquire about whether an applicant has ever been convicted of a crime before the first interview. Exemptions include law enforcement agency positions or positions related to law enforcement agencies.