Business owners have a right to fully investigate all potential job applicants and employees, within the confines of the law. This includes asking questions about past behavior, most notably criminal behavior. Depending on the nature of the company, an employee with a criminal record can raise significant red flags about company security. However, there is a growing national movement to “ban the box,” or eliminate the box on job applications that asks about criminal history. While South Carolina has not elected to enact any measures as of this writing, there is pressure for the state to do so.
How Do Ban-The-Box Laws Help?
The initiative, which is operating at a national level, seeks to eliminate the box or questions on job applications dealing with felony convictions. One might assume that the proponents are in favor of banning any possibility of investigating this history, but in reality, the most common ban-the-box initiatives merely call for more nuanced investigation, to examine the type and age of the offense rather than simply refusing at the mere mention of a felony record. Someone convicted a decade ago of felony tax evasion, for example, will be a very different employee, and pose a different type of risk, than someone convicted two years ago of felony sexual assault.
A Harvard study reports that a conviction on one’s record reduces the likelihood of a callback by approximately 50 percent. However, this does not just affect those formerly incarcerated; due to so many people missing out on employment opportunities, the U.S. economy misses out on potential revenue. When people work, they pay taxes. Unemployment drives poverty not only for ex-convicts, but potentially for others as well. South Carolina’s economy loses out on significant income every time a job is not filled.
Requirements and Misconceptions
Some of the opposition to ban-the-box laws comes from belief in misconceptions that such laws take jobs away from those without criminal records. This is not the case. Employers are not required to hire ex-convicts, just as the Americans With Disabilities Act does not mandate that employers hire disabled people. The initiative simply holds that people with criminal records be granted equal chances at employment, instead of being declined out of hand before a thorough review of their qualifications has been done.
Currently, South Carolina does not have such a law on its books, but many private companies doing business within the state, such as Target, Walmart, Starbucks and Home Depot, have voluntarily removed the question from their applications at all locations. It is important to recognize the distinction – if you apply for a job at one of the companies that has adopted this initiative, and are turned down due to your criminal record, you have no legal recourse in South Carolina because the rule is in-house, not statewide. If questions of criminal history were banned by South Carolina law, you might be able to mount a discrimination claim if you had reasonable suspicion that you were discriminated against.
Contact An Employment Law Attorney
As of this writing, a federal level Fair Choice Act is making its way through Congress, so the states may see the box banned at least for government employers nationwide. However, in the meantime, criminal history remains outside the acceptable reasons to file a discrimination claim. If you have any other questions or believe you were unfairly treated for another reason, contacting an employment law attorney is a good idea. Attorney A. Christopher Potts and the Charleston firm of Hitchcock & Potts are knowledgeable in several different areas of employment law, and are happy to help you with your issue. Contact us today to set up an appointment.