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Employment Blog

"Ban the Box" Legislation Expands – What should Employers Do?

Authored by Dean R. Dietrich
Dean R. Dietrich
Attorney
Wausau Office

Posted on May 21, 2018
Filed under Employment

We have seen a recent expansion of “Ban the Box Legislation” which prevents employers from asking information about the arrest or conviction record of an applicant for a position.  Some legislation prevents employers from conducting criminal background checks on applicants until a final selection has been made and a final candidate is being considered.  Wisconsin has not passed this type of legislation for employers; however, the State of Wisconsin does not ask questions about an arrest and conviction record as part of the normal application process.  Many employers are starting to consider whether they should avoid asking these types of questions in the initial application for employment.  Some employers are even considering ignoring conviction record information relating to the use of marijuana because of the increased acceptability of that conduct.

This is a very challenging question that needs to be addressed by each employer.  There is such a struggle to find qualified applicants for open positions that employers are starting to open up the application process and be less restrictive when conducting initial reviews of candidates for a position.  This then, can lead to employers being more lenient in how they consider the background of applicants if the applicant is considered worthy of further consideration by the employer.  This all focuses on the difficulty in finding suitable candidates for open positions.

The background of “Ban the Box” legislation is recognition that people can change and deserve to be considered for a position, even if they have had some legal troubles in the past.  A lot of this consideration focuses on finding qualified candidates, but it also focuses on the suggestion that an individual deserves a “second chance” especially if the conviction record relates back to conduct at an early age.  Employers do recognize that people can change, and that the passage of time may be an indication that an individual has learned from their past poor choices and have the potential to be a good candidate for an open position.

Employers need to give consideration of how they look at applicants.  As noted above, employers are starting to take a more lenient view about past convictions for marijuana use, or even current arrest for such use.  Employers need to have a discussion about this internally, and develop a specific corporate policy that will be followed regularly and routinely when considering criminal background checks and a history of convictions for criminal conduct.  Employers really need to give this some good thought when balancing the desire to have the best candidate for an open position, and the availability of candidates to fill the position.