Rhode Island Joins the ‘Ban the Box’ Movement

By Scott J. Wenner

Effective January 1, 2014, employers of four or more employees in Rhode Island no longer will be permitted to include in job applications an inquiry into the criminal background of applicants for employment.  This prohibition will be contained in the Rhode Island Fair Employment Practices Act, and grows out of companion legislation passed by both houses of Rhode Island’s Legislature in the form of Senate Bill 357A (here) and House Bill 5507A (here).

This new law, signed by Governor Chaffee on July 15, like similar laws enacted by a growing group of states around the nation, does not purport to prohibit employers from inquiring into the criminal backgrounds of applicants before hiring them.  It instead regulates that practice by creating a new unlawful employment practice – it prohibits, whether on an employment application or orally at any time before the first interview,  any question asking whether the applicant ever has been “arrested, charged with or convicted of any crime.” Exceptions exist for certain categories of applicants (e.g., in law enforcement or for positions requiring a fidelity bond.)

It is important for employers to note that even if an employer refrains from inquiring into the criminal background of an applicant until the first interview or thereafter, the Rhode Island “ban the box” law will not relieve the employer of potential liability for its reliance on a criminal background check as part of the screening process. This new statute declares: “[A]ny employer may ask an applicant for information about his or her criminal convictions at the first interview or thereafter, in accordance with all applicable state and federal laws.” This italicized language, of course, is the rub. For as we have written recently elsewhere, the EEOC has become more aggressive in its campaign to curb the overly broad use, in its view, of what it considers to be a screening device that has a disparate exclusionary impact on black and Hispanic job applicants.

At present, in addition to the Rhode Island law that will become effective in January, 2014, Massachusetts, Minnesota and Hawaii already have enacted “ban the box” laws covering both private and public employers.  Ban the box laws applicable only to public employers have been enacted in California, Colorado and Connecticut,  In addition laws exist at the municipal and county levels in at least seven other states that ban the practice: California, Connecticut, Michigan, New Jersey, New York, Pennsylvania (including both Philadelphia and Pittsburgh), and Washington.

Careful review of application forms should be undertaken to ensure compliance, and employees, particularly human resources employees, should be made aware of questions to avoid in “ban the box” states and localities.  Ideally for larger employers, these practices should be a part of a companywide review of practices relating to the use of criminal background checks in view of the EEOC’s views on their use and the agency’s recent activity in support of that view.