The Employer's Legal Resource: Governor Fallin signs "Ban the Box" Executive Order
On February 24, Governor Fallin signed an Executive Order ordering "all state agencies to remove from job applications, questions regarding convictions and criminal history, unless a felony conviction would automatically render an applicant not qualified." The Executive Order does permit the state agency employer from inquiring about "felony convictions during the interview process" and does permit the state agency employer to conduct "background checks into prospective employees" [note: the Fair Credit Reporting Act may apply to such background checks].
The purpose of the Executive Order is clearly stated by the Governor:
"This [Executive] Order is intended to provide state job applicants at least the initial opportunity for consideration for employment, an opportunity to discuss their conviction record and provide information that indicates rehabilitation, and allows applicants to be considered based upon their qualifications without the stigma of a conviction record."
Because Governor Fallin used an Executive Order, as opposed to legislation passed by the Oklahoma legislature which was then presented to her, this applies only to state agency employers. However, in her press release, the Governor notes that 19 states have enacted similar "ban the box" laws designed to provide more access to jobs for persons with convictions. The press release also notes that "one in 12 Oklahomans is a convicted felon, with more than 55,000 people currently in prison or under the supervision of the Oklahoma Department of Corrections, most for non-violent offenders." Governor Fallin notes "the ability to gain employment is a critical and necessary component in reducing recidivism and for those individuals to lead productive and successful lives," concluding "we should remove unnecessary barriers to employment opportunities for Oklahomans with felony convictions."
As a private employer in Oklahoma, how does this impact you? You are not required to remove questions about convictions from your job application (yet). However, you would be wise to consider whether you should. Certainly, the trend is to ask about convictions only when it is job related and consistent with business necessity. That's been true since the EEOC issued its "Consideration of Arrest and Conviction Records in Employment Decisions" Guidance. Like so many things we discuss, if it matters to the person's ability to do the job, it matters. If it does not impact the person's ability to do the job, then why ask?
We cannot predict whether the Oklahoma Legislature will pass legislation which will "ban the box" for private employers, but many states have done so. In the meantime, if you currently ask all your applicants whether they have been convicted, consider whether that question is job related and consistent with business necessity. If it is only relevant to certain positions, consider limiting the question to only those positions. Then, when you get the answer, determine whether the specific facts are or are not disqualifying. As to positions where a conviction is not relevant to an applicant's ability to do the job, you might consider deleting the question from your application as you may be excluding a significant segment of the pool of qualified candidates.
By Kristen L. Brightmire, firstname.lastname@example.org