Navigating the spreading ‘ban the box’ laws
Navigating the spreading ‘ban the box’ laws
21 APRIL 2017 7:15 AM

Now might be the time to review your hiring practices to ensure they conform to “ban the box” laws and you have diligent screening of prospective employees for the protection of guests and staff.

A number of states and an even-larger number of cities and municipalities have passed so-called “ban the box” laws, which prevent employers from asking applicants and employees if they have previously been arrested or convicted of a crime.

This is a fairly recent legal trend, which follows President Barack Obama’s 2015 mandate to the federal government’s human resources department to “delay inquiries into criminal history until later in the hiring process.” The underlying policy for these laws is to lower barriers to the workforce that can keep reformed prior offenders in a cycle of crime and poverty.

In those states and cities, an employer would not be able to include a question, either in an application or as a separate document, requesting that the employee or applicant reveal criminal background information. Employers who violated these laws can be subject to fines.

Even if your state or local government has not yet “banned the box,” your legislature or local government might be currently considering such legislation. In states, cities and municipalities that have not adopted a “ban the box” law, many have adopted some limitations or requirements related to conducting background checks or requesting criminal history information.

These laws have been passing at a rapid rate in recent years, and more will likely pass. To ensure that your business is in compliance with the law, you should work with a qualified employment and labor attorney to check periodically for changes in the law.

Complying with these laws can complicate an operator’s responsibilities to investigate the background of new hires. Negligent hiring is a common base for claims against businesses when guests or other employees are injured by the wrongdoing or negligence of an employee.

In an ongoing case to which I referred in this column last summer, an out-of-town guest of a luxury hotel in Philadelphia claimed she was sexually assaulted by a masseuse employed by a third-party spa and fitness center operating at the hotel. The suit names the hotel’s owners, the management company operating the property, and, of course, the fitness and spa company along with its staff member as defendants.

Among the plaintiff guest’s claims against the spa and fitness center is “negligent hiring,” which alleges the employer failed to perform an adequate investigation into the employee’s background during the hiring process, which might have shown he or she had a history of dangerous or reckless behavior. To that point, the plaintiff guest’s lawsuit alleges that the masseuse had been convicted previously for similar sexual assaults.

The defendant hotel-based spa and fitness center (referred to as the “Gym Defendants” in court documents) argued to the U.S. District Court in the Eastern District of Pennsylvania, in a motion to dismiss the allegations of negligent hiring, that they “had no duty to conduct a more thorough pre-employment investigation into Mr. McNeill because the Pennsylvania Criminal History Record Information Act (“CHRIA”) would have legally prohibited them from considering any of the information they could have discovered about the staff member’s past.” In a memorandum ruling on the motion, the judge summarized the defendant’s argument:

“The Gym Defendant’s Motion to Dismiss primarily argues that had the Gym Defendants taken the steps [the plaintiff] alleges they were negligent in failing to do (e.g., investigating [the masseuse’s] criminal and employment histories), they would only have discovered information that Pennsylvania law prohibits them from taking into consideration when making their hiring decisions. The Gym Defendants argue that the law cannot impose a duty on an employer to break the law.”

Whether the hotel spa and fitness center defendants will be found liable for negligent hiring is yet to be seen, as the case continues to progress in litigation. What is clearer, however, is the federal judge assigned to this case was not willing to dismiss the charges based on the spa and fitness center’s defense, they were prohibited from inquiring about the masseuse’s criminal record under the state “ban the box” law.

The memorandum referenced “pertinent parts” of Section 9125 of the CHRIA:

(a) General Rule.--Whenever an employer is in receipt of information which is part of an employment applicant’s criminal history record information file, it may use that information for the purpose of deciding whether or not to hire the applicant, only in accordance with this section.

(b) Use of information.--Felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.

The judge wrote, “The CHRIA limits what information from an applicant’s criminal record information file an employer can consider when making hiring decisions. Employers can consider an applicant’s prior convictions to the extent they relate to the position sought; employers cannot consider an applicant’s prior arrests.”

Like many laws, “ban the box” laws often require careful interpretation and application. You and your attorneys will want to confirm your operation is both complying with these laws and exercising due diligence in screening prospective employees for the protection of guests and staff.

Barry Shuster, JD, MBA, MS, CHE, CHIA is interim chair of the Hospitality & Tourism Administration program at North Carolina Central University School of Business, and a visiting associate professor of business and hospitality law and hospitality finance and cost control.

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