‘Ban-the-box’ bill opposed by most business groups

Christine M. Cunneen, CEO of Johnston-based employee-screening firm Hire Image LLC, says not all companies throw out any job application with a “yes” next to the “prior criminal convictions” question.
With federal equal-opportunity guidelines warning against blanket hiring exclusions for ex-offenders, Cunneen said employers are now digging deeper to learn whether the applicant’s brush with the law really makes them unhirable.
“The guidelines say you shouldn’t have a blanket policy [toward prior convictions] unless you’re in an industry where it’s prohibited by regulation,” Cunneen said. “And in my practice with the human resources community, most employers don’t – they have multifaceted criteria.”
Still, Cunneen said employers are going to find out about criminal convictions if they want to know and attempts to legislate the hiring process, like the current “ban-the-box” bill proposed by Rhode Island lawmakers, would likely be counterproductive.
Cunneen is a member of the Society for Human Resources Management’s Rhode Island council, which opposes the bill, along with most business groups in the state.
In addition to concerns about government intrusion in free enterprise and the belief that companies should know as much as possible about who they hire, business leaders worry the bill could set the stage for a wave of opportunistic lawsuits.
“There are attorneys out there nationally just looking for lawsuits, doing it under the federal laws, but if Rhode Island were to pass it, attorneys would go after that too,” Cunneen said.
So-called “ban-the-box” bills, which refer to the criminal-conviction field in standard job applications, have been debated in state legislatures across the country. This is the third straight year a bill has been filed in Rhode Island.
In response to heavy opposition from the business community in previous years, this year’s bill has been scaled back. (An early version in 2011 required employers to notify applicants in writing if they were turned down because of a conviction and restricted the ability of companies to perform background checks.) The current bill, filed in the House by Rep. Scott Slater, D-Providence, would prohibit companies from asking applicants about prior convictions until after they had been ruled a finalist or been given a conditional job offer.
At that point, the employer would have to hire the applicant anyway unless the conviction has a “direct relationship between one or more of the previous criminal offenses and the employment sought.” There are also exceptions for positions where regulation prohibits the hiring of ex-offenders or in situations where the applicant is not bondable.
The potential for differing interpretations of “direct relationship” is what makes human resources professionals and business groups nervous, even if they support the underlying goal of finding work for residents who have served their time.
Several states, including Massachusetts, Maryland, and some municipalities have passed ban-the-box laws.
It’s unclear how likely the Rhode Island bill is to become law. Larry Berman, spokesman for House Speaker Gordon Fox, D-Providence, said recently the speaker had not decided whether to support the bill yet. A spokesman for Senate President M. Teresa Paiva Weed did not respond to inquiries.
So far the bills in other states don’t appear to have triggered a tidal wave of litigation, said Michael Yelnosky, professor of law at Roger Williams University Law School.
In labor law, Yelnosky said lawsuits challenging worker termination, rather than failure to hire, are much more common.
But even if fears of opportunistic lawsuits don’t materialize, business groups say the state shouldn’t meddle in the hiring process.
“The sentiment behind the bill is laudable, but it would change the order of the hiring process and does raise concerns for employers about being able to do background checks,” said Greater Providence Chamber of Commerce President Laurie White. “The idea is to balance the desire to give someone who is a first offender a chance to get back in the workforce, but not do it by compromising the information at an employers’ disposal to evaluate a portfolio of qualifications.” •

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