Tag Archives: gagliardo

How to Handle New ‘Ban-the-Box’ Laws

The term, “ban the box,” refers to the question on hiring applications that asks if the applicant has a criminal record/conviction; if so, he has to check the “Yes” box. “Ban-the-box” laws are laws designed to restrict employers from including questions that ask about prior arrests or convictions on initial employment applications. The purpose behind the law is to reduce unfair barriers to the employment of people with criminal records. The ban-the-box movement requires employers to act and fast. Numerous states and cities have enacted such laws, and we expect more to follow in the near future.

Illinois’ ban-the-box equivalent, titled the Job Opportunities for Qualified Applicants Act, takes effect Jan. 1, 2015. Illinois is prohibiting private and public employers from asking about an applicant’s criminal history until after the employer selects the applicant for an interview or provides the applicant with a conditional offer of employment. Illinois’ act applies to all private-sector employers with 15 or more employees.

There are exceptions. The act does not apply to: (1) jobs that cannot be held by convicted criminals under federal or state law, (2) jobs  requiring licensing under the Emergency Medical Services System Act and (3) jobs requiring fidelity bonds. The act gives the Illinois Department of Labor (“IDOL”) the power to investigate alleged violations and authorizes IDOL to impose civil penalties up to $1,500. We expect that IDOL will start fining employers as soon as the act goes into effect.

Private-employer ban-the-box laws currently exist in California, Colorado, Connecticut, Delaware, Illinois, Maryland,   Massachusetts, Nebraska, New Jersey, New Mexico and Rhode Island. Numerous cities have passed similar laws. Pending legislation exists in Florida, Georgia, Louisiana, Michigan, New Hampshire, North Carolina, Ohio and numerous cities.

Some states’ laws prohibit employers from asking about criminal history in the initial employment application before conducting an interview, while other laws prohibit such inquiries until after the employer makes a conditional offer of employment.

Be wary, as ban-the-box laws vary in terms of what types of criminal-history questions employers may ask applicants. For example, some laws only allow employers to ask about specific convictions and explicitly prohibit employers from asking about non-conviction arrests or expunged records. Exemptions can vary as well, with exclusions for facilities or employers that provide programs, services or care to minors or vulnerable adults.

As each state’s ban-the-box law may vary, it is important for employers to reevaluate their pre-employment and hiring practices. Employers affected by ban-the-box laws that do not update their applications and pre-employment processes risk being investigated and fined on an individual and potentially class-wide basis. Employers that operate in different states need to be diligent to make sure their applications are tailored to each state and city.

The takeaway:

Have your HR department or labor counsel review your employment applications and company policies to ensure that questions regarding an applicant’s criminal history comply with applicable laws. Additionally, employers should consider providing compliance training to employees involved in interviewing and hiring to make sure they are knowledgeable about the new laws.

Laura Zaroski wrote this article with her colleagues Joseph M. Gagliardo, Lily M. Strumwasser and Laner Muchin.

Medical Marijuana Law: Effect in Illinois

Last year, Illinois passed a “medical marijuana” law that became effective Jan. 1, 2014, known as the Compassionate Use of Medical Cannabis Pilot Program Act, 410 ILCS 130/1, et seq. The act allows doctors to recommend and certify the use of medical marijuana by patients who are under the doctors’ care for certain qualifying medical conditions.

Certain rights of employers are affected, but in other ways it will be business as usual for employers. Most notably, employers cannot discriminate against a registered patient on the basis of his or her registration (in most cases). This mandate may require employers to reconfigure their drug policies and certain provisions in their employee handbooks to ensure compliance with the act. Also, there will need to be management training to educate managers and supervisors.

Contrary to what you might first think, the act still permits employers to operate a Drug Free Workplace. Employers are allowed to prohibit possession or consumption of marijuana on their property. Further, the act specifically allows employers to enforce work rules, give drug tests and discipline employees exhibiting signs of impairment while at work. Employees beware! The act is not a license to possess or be high at work.

Based on the rights that employers still retain, it appears inevitable that sticky issues will arise as the act is implemented and employers struggle with compliance as well as enforcing their own policies. For example, while the act expressly allows employers to conduct drug testing, what if an employee’s drug test registers marijuana use, but the test cannot differentiate whether that use was hours, days or months ago? Would refusing to hire that individual be okay as enforcement of a Drug Free Workplace, or would that decision be discriminating against an individual for his or her “status” as a registered medical marijuana patient? Moreover, the law allows employers to maintain a Drug Free Workplace “provided the policy is applied in a non-discriminatory manner.” It is unclear whether patients will be able to assert disparate impact claims arguing that employers’ facially neutral workplace policies have a statistical impact on their “protected class.” Additionally, the law requires that an employee disciplined for exhibiting signs of impairment must be given an opportunity to contest the basis for the determination, but the law does not provide any guidance as to what type of procedural protection the employee must receive. Finally, it is unclear what, if any, interplay this Illinois law will have with the federal Americans With Disabilities Act.

Unfortunately, we believe that many of the gray areas surrounding the act will likely be resolved through future litigation. To make sure your clients are prepared, we suggest that you have a lawyer review your policies and procedures and provide training to your management personnel. Also, ensure that your clients have a robust Employment Practices Liability policy in place that will respond and defend the employers in case they are faced with a discrimination suit in relation to violation of the act.