During a speech in Newark New Jersey, President Obama announced executive action aimed at “banning the box” in federal hiring. This is the latest step in a national trend toward delaying inquiries into a job applicant’s criminal history until later in the hiring process. The term “ban the box,” refers to the checkbox appearing on many employment applications asking job seekers to identify whether they have criminal history. Advocates of “ban the box” measures believe that requiring prospective employees to report their criminal history at the initial application stage prevents many otherwise qualified people with criminal backgrounds from even getting the chance to land good jobs.
According to information provided by the White House, the President is ordering the Office of Personnel and Management (“OPM”) to “take action where it can by modifying its rules to delay inquiries into criminal history until later in the hiring process.” It is unclear exactly what new policies and procedures will emerge from the President’s directive, and there is no specific timeline for when any changes in federal government hiring practices will take effect.
Thirteen states, including Massachusetts, already have “ban the box” laws. The Massachusetts “ban the box” law, which went into effect in 2010, prohibits most employers from asking for criminal offender record information in an initial written job application. Beyond that, Massachusetts law prohibits employers from asking—at any time—about: arrests not resulting conviction; first convictions for drunkenness, simple assault, speeding, minor traffic violations, and other minor offences; and most misdemeanor convictions that are more than five years old.
While the President praised Congress for considering bipartisan legislation that would “ban the box” in hiring by the federal government and federal contractors, his directive to OPM is aimed at making changes to federal hiring practices without the need to wait for Congressional action. The President has gotten out in front of Congress on other employment-related issues. In September, he issued an Executive Order mandating that federal contractors provide paid sick time to their employees, and last year, he issued an Executive Order increasing the minimum wage for employees of certain federal contractors. Whether Congress will follow the President’s lead in making similar changes for all American workers remains to be seen.