“Ban the Box” laws have been rapidly growing in a number of states, prohibiting employers from including a “check box” that inquires into an applicant’s criminal convictions as a part of their application, or at any time throughout the employment process, prior to a contingent job offer (and by default, the background check process). The premise of the “Ban the Box” movement is to provide Americans who have criminal records greater chances of getting hired.
What if this is relevant to the essential functions of the applicant’s job? What if the position requires the individual to have no pertinent convictions; for positions such as working with children, dealing closely with large amounts of money, or driving commercial vehicles for work?
For example, the Federal Motor Carrier Safety Administration Regulations (FMCSR) publishes rules and regulations to include in employment applications that are tailored to positions in which the applicant will drive commercial vehicles. Two of these regulations are the requirements that any applicant who completes a commercial driver application list all motor vehicle violations in the past 3 years, and that the applicant provide a statement providing details of any suspension, denial, or revocation of their driver’s license.
Couriers within a bank, for example, are required to comply with state, federal, and local regulations pertaining to driving a commercial vehicle. A general approach to employment applications isn’t efficient if employers have positions in which such criminal convictions are applicable to the position.
Employers should review their applications to ensure compliance with not only federal, state, and local law, but compliance with the FMCSR (as applicable to the position), and should review “Ban the Box” regulations in your area. This would be another good opportunity to review job descriptions to ensure clarity with regards to why having no applicable criminal convictions is relevant to, and required of, that position.